Jesus Gonzalez v. State of Arizona

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIA M. GONZALEZ,; LUCIANO 

VALENCIA; THE INTER TRIBAL

COUNCIL OF ARIZONA, INC.;

ARIZONA ADVOCACY NETWORK;

STEVE M. GALLARDO; LEAGUE OF

UNITED LATIN AMERICAN CITIZENS

ARIZONA; LEAGUE OF WOMEN

VOTERS OF ARIZONA;

PEOPLE FOR THE AMERICAN WAY

FOUNDATION; HOPI TRIBE,

Plaintiffs, 

and

BERNIE ABEYTIA; ARIZONA HISPANIC

COMMUNITY FORUM; CHICANOS POR

LA CAUSA; FRIENDLY HOUSE; JESUS

GONZALEZ; DEBBIE LOPEZ;

SOUTHWEST VOTER REGISTRATION

EDUCATION PROJECT; VALLE DEL

SOL; PROJECT VOTE,

Plaintiffs- Appellants,



4111

4112 GONZALEZ v. ARIZONA



v.

STATE OF ARIZONA; SHELLY BAKER,

La Paz County Recorder; BERTA

MANUZ, Greenlee County

Recorder; CANDACE OWENS,

Coconino County Recorder; LYNN

CONSTABLE, Yavapai County

Election Director; KELLY DASTRUP,

Navajo County Election Director;

LAURA DEAN-LYTLE, Pinal County

Recorder; JUDY DICKERSON,

Graham County Election Director;

DONNA HALE, La Paz County

Election Director; SUSAN 

HIGHTOWER MARLAR, Yuma County

Recorder; GILBERTO HOYOS, Pinal

County Election Director;

LAURETTE JUSTMAN, Navajo County

Recorder; PATTY HANSEN,

Coconino County Election

Director; CHRISTINE RHODES,

Cochise County Recorder; LINDA

HAUGHT ORTEGA, Gila County

Recorder; DIXIE MUNDY, Gila

County Election Director; BRAD

NELSON, Pima County Election

Director; KAREN OSBORNE,

Maricopa County Election

Director;



GONZALEZ v. ARIZONA 4113

YVONNE PEARSON, Greenlee County  No. 08-17094

Election Director; PENNY PEW, D.C. Nos.

Apache County Election Director; 2:06-cv-01268-ROS

HELEN PURCELL, Maricopa County  06-cv-01362-PCT-

Recorder; F. ANN RODRIGUEZ, Pima JAT

County Recorder, KEN BENNETT, 06-cv-01575-PHX-

Defendants-Appellees,

 EHC

MARIA M. GONZALEZ; BERNIE 

ABEYTIA; ARIZONA HISPANIC

COMMUNITY FORUM; CHICANOS POR

LA CAUSA; FRIENDLY HOUSE; JESUS

GONZALEZ; DEBBIE LOPEZ;



SOUTHWEST VOTER REGISTRATION

EDUCATION PROJECT; LUCIANO

VALENCIA; VALLE DEL SOL;

PEOPLE FOR THE AMERICAN WAY

FOUNDATION; PROJECT VOTE,

Plaintiffs,

and



4114 GONZALEZ v. ARIZONA

THE INTER TRIBAL COUNCIL OF 

ARIZONA, INC.; ARIZONA ADVOCACY

NETWORK; STEVE M. GALLARDO;

LEAGUE OF UNITED LATIN AMERICAN

CITIZENS ARIZONA; LEAGUE OF

WOMEN VOTERS OF ARIZONA; HOPI

TRIBE,

Plaintiffs-Appellants,

v.

STATE OF ARIZONA; KEN BENNETT;

SHELLY BAKER, La Paz County

Recorder; BERTA MANUZ, Greenlee

County Recorder; CANDACE

OWENS, Coconino County 

Recorder; PATTY HANSEN,

Coconino County Election

Director; KELLY DASTRUP, Navajo

County Election Director; LYNN

CONSTABLE, Yavapai County

Election Director; LAURA DEAN-

LYTLE, Pinal County Recorder;

JUDY DICKERSON, Graham County

Election Director; DONNA HALE,

La Paz County Election Director;

SUSAN HIGHTOWER MARLAR, Yuma

County Recorder; GILBERTO

HOYOS, Pinal County Election

Director;



GONZALEZ v. ARIZONA 4115

LAURETTE JUSTMAN, Navajo County 

Recorder; CHRISTINE RHODES,

Cochise County Recorder; LINDA

HAUGHT ORTEGA, Gila County

Recorder; DIXIE MUNDY, Gila

County Election Director; BRAD

NELSON, Pima County Election No. 08-17115

Director; KAREN OSBORNE,

Maricopa County Election  D.C. No.

2:06-cv-01268-ROS

Director; YVONNE PEARSON,

Greenlee County Election OPINION

Director; PENNY PEW, Apache

County Election Director; HELEN

PURCELL, Maricopa County

Recorder; F. ANN RODRIGUEZ, Pima

County Recorder,

Defendants-Appellees,



Appeals from the United States District Court

for the District of Arizona

Roslyn O. Silver, Chief District Judge, Presiding

Argued and Submitted

June 21, 2011—Pasadena, California

Filed April 17, 2012

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Pamela Ann Rymer, Susan P. Graber, Marsha S. Berzon,

Johnnie B. Rawlinson, Richard R. Clifton, Jay S. Bybee,

Sandra S. Ikuta, N. Randy Smith, and Mary H. Murguia,

Circuit Judges.1

1

Judge Rymer participated in oral argument and deliberations but

passed away before joining any opinion.

4116 GONZALEZ v. ARIZONA

Opinion by Judge Ikuta;

Concurrence by Chief Judge Kozinski;

Concurrence by Judge Berzon;

Partial Concurrence and Partial Dissent by Judge Pregerson;

Partial Concurrence and Partial Dissent by Judge Rawlinson

4120 GONZALEZ v. ARIZONA

COUNSEL

Nina Perales, Esq. (argued), Mexican American Legal

Defense and Educational Fund, San Antonio, Texas, for

plaintiffs-appellants Jesus Gonzalez, et al.

Jon M. Greenbaum, Esq. (argued), Robert A. Kengle, Law-

yers’ Committee for Civil Rights Under Law, Washington,

D.C., David J. Bodney, Esq., Steptoe & Johnson, LLP, Phoe-

nix, Arizona, David B. Rosenbaum, Esq., Thomas L. Hudson,

Esq., Osborn Maledon, P.A., Phoenix, Arizona, Joe P. Sparks,

Esq., The Sparks Law Firm, Scottsdale, Arizona, Daniel B.

Kohrman, Esq., AARP, Washington, D.C., for plaintiffs-

appellants The Inter Tribal Council of Arizona, et al.

Samuel R. Bagenstos (argued), DOJ, Washington, D.C., for

amicus curiae United States.

Thomas C. Horne (argued), Attorney General, Phoenix, Ari-

zona, Mary O’Grady, Solicitor General, Phoenix, Arizona, for

defendant-appellee Ken Bennett.

OPINION

IKUTA, Circuit Judge:

Proposition 200 requires prospective voters in Arizona to

provide proof of U.S. citizenship in order to register to vote,

GONZALEZ v. ARIZONA 4121

see Ariz. Rev. Stat. § 16-166(F) (the “registration provision”),

and requires registered voters to show identification to cast a

ballot at the polls, see Ariz. Rev. Stat. § 16-579(A) (the “poll-

ing place provision”). This appeal raises the questions

whether Proposition 200 violates § 2 of the Voting Rights Act

of 1965 (VRA), 42 U.S.C. § 1973, is unconstitutional under

the Fourteenth or Twenty-fourth Amendments to the Consti-

tution, or is void as inconsistent with the National Voter Reg-

istration Act of 1993 (NVRA), 42 U.S.C. §§ 1973gg et seq.

We uphold Proposition 200’s requirement that voters show

identification at the polling place, but conclude that the

NVRA supersedes Proposition 200’s registration provision as

that provision is applied to applicants using the National Mail

Voter Registration Form (the “Federal Form”) to register to

vote in federal elections.

I

On November 2, 2004, Arizona voters passed a state initia-

tive, Proposition 200, which (upon proclamation of the Gov-

ernor) enacted various revisions to the state’s election laws.

As explained in more detail below, Proposition 200’s registra-

tion provision amended Arizona’s voter registration proce-

dures to require the County Recorder to “reject any

application for registration that is not accompanied by satis-

factory evidence of United States citizenship.” Ariz. Rev.

Stat. § 16-166(F). Proposition 200’s polling place provision

amended Arizona’s election day procedures to require voters

to present specified forms of identification at the polls. See id.

§ 16-579(A).

Shortly after Proposition 200’s passage, a number of plain-

tiffs filed lawsuits against Arizona2 to enjoin these changes.

Two groups of plaintiffs are relevant to this appeal: the Gon-

2

We refer to the defendants collectively as “Arizona,” even though Ari-

zona county recorders were also named as individual defendants.

4122 GONZALEZ v. ARIZONA

zalez plaintiffs (Gonzalez) and the Inter Tribal Council of

Arizona plaintiffs (ITCA).3

The district court consolidated the various complaints.

After the district court denied the plaintiffs’ motion for a pre-

liminary injunction, Gonzalez and ITCA appealed. See Gon-

zalez v. Arizona (Gonzalez I), 485 F.3d 1041, 1046 (9th Cir.

2007). Because the briefing schedule for the appeal extended

beyond the 2006 election, Gonzalez and ITCA moved for an

emergency interlocutory injunction (which would prevent the

implementation of Proposition 200 pending the disposition of

the appeal of the district court’s denial of a preliminary

injunction), which we granted. See id. After Arizona peti-

tioned for certiorari, the Supreme Court vacated the emer-

gency injunction and remanded the case to this court for a

determination of the merits of the appeal. See Purcell v. Gon-

zalez, 549 U.S. 1, 5-6 (2006) (per curiam).

On remand, Gonzalez and ITCA pursued their claim for

preliminary injunctive relief only with respect to Proposition

200’s registration requirement. Gonzalez I, 485 F.3d at 1048.

The panel in Gonzalez I affirmed the district court’s denial of

the preliminary injunction, holding that Proposition 200’s reg-

istration provision was not an unconstitutional poll tax and

was not superseded by the NVRA. See id. at 1049, 1050-51.

On remand, the district court held that Proposition 200’s

polling place provision was not a poll tax under the Twenty-

fourth Amendment and its registration provision did not con-

flict with the NVRA, and granted summary judgment to Ari-

3

Jesus Gonzalez represented one group of plaintiffs, which consisted of

individual Arizona residents and organizational plaintiffs. The Inter Tribal

Council of Arizona, a non-profit organization of twenty Arizona tribes,

represented another group of plaintiffs, which included the Hopi Tribe,

Representative Steve Gallardo from the Arizona State House of Represen-

tatives, the League of Women Voters of Arizona, the League of United

Latin American Citizens, the Arizona Advocacy Network, and People For

the American Way Foundation.

GONZALEZ v. ARIZONA 4123

zona on these claims. After trial, the district court resolved all

other claims in favor of Arizona, holding that Proposition 200

did not violate § 2 of the VRA or the Equal Protection Clause

of the Fourteenth Amendment and did not constitute a poll tax

under the Fourteenth Amendment.

Gonzalez and ITCA appealed the district court’s rulings on

the NVRA and Twenty-fourth Amendment claims. In addi-

tion, ITCA challenged the court’s determination that Proposi-

tion 200 was not a poll tax under the Fourteenth Amendment,

and Gonzalez challenged the court’s determinations on the

Voting Rights Act and Equal Protection Clause claims. A

three-judge panel affirmed in part and reversed in part, hold-

ing that Proposition 200’s polling place provision did not vio-

late the VRA or the Fourteenth and Twenty-fourth

Amendments, but that Proposition 200’s registration provi-

sion was superseded by the NVRA. Gonzalez v. Arizona

(Gonzalez II), 624 F.3d 1162 (9th Cir. 2010). In deciding

Gonzalez and ITCA’s challenge to the registration provision,

the panel overruled the contrary holding of Gonzalez I on the

ground that an exception to the law of the case rule applied.4

4

Under the law of the case doctrine, a court will generally refuse to

reconsider an issue that has already been decided by the same court or a

higher court in the same case. See Jeffries v. Wood, 114 F.3d 1484,

1488-89 (9th Cir. 1997) (en banc). We have recognized exceptions to the

law of the case doctrine, however, where “(1) the decision is clearly erro-

neous and its enforcement would work a manifest injustice, (2) interven-

ing controlling authority makes reconsideration appropriate, or (3)

substantially different evidence was adduced at a subsequent trial.” Id. at

1489 (footnote omitted) (quoting Caldwell v. Unified Capital Corp. (In re

Rainbow Magazine, Inc.), 77 F.3d 278, 281 (9th Cir. 1996)) (internal quo-

tation marks omitted). Some of our cases indicated that a three-judge panel

could rely on these exceptions to overrule the law of an earlier published

opinion, so long as no subsequent panel had yet relied on it. See id. at

1492-93; see also Mendenhall v. NTSB, 213 F.3d 464, 469 n.3 (9th Cir.

2000); Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency,

216 F.3d 764, 786-88 (9th Cir. 2000).

We now hold that the exceptions to the law of the case doctrine are not

exceptions to our general “law of the circuit” rule, i.e., the rule that a pub-

4124 GONZALEZ v. ARIZONA

See id. at 1185-91. A majority of the active judges of the court

voted to rehear the case en banc.

II

We first consider Proposition 200’s registration provision.

See Ariz. Rev. Stat. § 16-166(F). Gonzalez and ITCA contend

that this provision is preempted by the NVRA under both the

Supremacy Clause and the Elections Clause of the U.S. Con-

stitution. In response, Arizona relies on the Supremacy

Clause’s “presumption against preemption,” see Medtronic,

Inc. v. Lohr, 518 U.S. 470, 485 (1996), to argue that the

NVRA neither expressly nor impliedly preempts state voter

registration laws. Before addressing the parties’ arguments,

we first consider whether the framework of the Elections

Clause or the Supremacy Clause properly governs this ques-

tion.

A

[1] The Elections Clause establishes a unique relationship

between the state and federal governments. It provides:

lished decision of this court constitutes binding authority which “must be

followed unless and until overruled by a body competent to do so,” Hart

v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). To the extent that our

prior cases suggested otherwise, see Jeffries, 114 F.3d at 1492-93; Men-

denhall, 213 F.3d at 469 n.3; Tahoe-Sierra Pres. Council, Inc., 216 F.3d

at 786-88, they are overruled. This determination, however, does not affect

other recognized exceptions to the law of the circuit rule. See Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that where

“the relevant court of last resort” has “undercut the theory or reasoning

underlying the prior circuit precedent in such a way that the cases are

clearly irreconcilable,” then “a three-judge panel of this court and district

courts should consider themselves bound by the intervening higher author-

ity and reject the prior opinion of this court as having been effectively

overruled”); see also Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 982 (2005) (holding that a “court’s prior judicial

construction of a statute trumps an agency construction otherwise entitled

to Chevron deference only if the prior court decision holds that its con-

struction follows from the unambiguous terms of the statute and thus

leaves no room for agency discretion”).

GONZALEZ v. ARIZONA 4125

The Times, Places and Manner of holding Elections

for Senators and Representatives, shall be prescribed

in each State by the Legislature thereof; but the Con-

gress may at any time by Law make or alter such

Regulations, except as to the Places of chusing Sena-

tors.

U.S. Const. art. I, § 4, cl. 1. In a nutshell, state governments

are given the initial responsibility for regulating the mechan-

ics of federal elections, but Congress is given the authority to

“make or alter” the states’ regulations.

The history of the Elections Clause reveals the reasoning

behind its unusual delegation of power. Under the Articles of

Confederation, the states had full authority to maintain,

appoint, or recall congressional delegates.5 At the Philadel-

phia Convention, delegates expressed concern that, if left

unfettered, states could use this power to frustrate the creation

of the national government, see U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 808-09 (1995), most obviously by

neglecting to hold federal elections. The Framers decided that

Congress should be given the authority to oversee the states’

procedures related to national elections as a safeguard against

potential state abuse. See id.; see also The Federalist No. 59,

at 168 (Alexander Hamilton) (Ron P. Fairfield ed., 2d ed.

1981) (explaining that “[n]othing can be more evident, than

that an exclusive power of regulating elections for the

national government, in the hands of the State legislatures,

would leave the existence of the Union entirely at their

mercy”). Over the protest of some Southern delegates,6 the

5

See Articles of Confederation of 1781, art. V (“[D]elegates shall be

annually appointed in such manner as the legislature of each State shall

direct . . . with a power reserved to each state, to recall its delegates

. . . .”).

6

South Carolinian delegates Charles Pinckney and John Rutledge

moved to exclude the language giving Congress this supervisory power

over the states. 5 The Debates in the Several State Conventions, on the

4126 GONZALEZ v. ARIZONA

Framers approved language giving Congress power to “make

or alter” the states’ regulations. See 5 Elliot’s Debates 401-02

(statement of James Madison). As modified to give Congress

this supervisory power, this language became the Elections

Clause.7

[2] Thus, the Elections Clause empowers both the federal

and state governments to enact laws governing the mechanics

of federal elections. The clause gives states the default author-

ity to prescribe the “Times, Places and Manner” of conducting

federal elections. Nevertheless, because Congress “may at any

time by Law make or alter” the regulations passed by the

state, power over federal election procedures is ultimately

“committed to the exclusive control of Congress.” Colegrove

v. Green, 328 U.S. 549, 554 (1946).8 While Congress may not

Adoption of the Federal Constitution, as Recommended by the General

Convention at Philadelphia, in 1787. Together with the Journal of the

Federal Convention, Luther Martin’s Letter, Yates’s Minutes, Congressio-

nal Opinions, Virginia and Kentucky Resolutions of ’98-’99, and Other

Illustrations of the Constitution 401 (photo. reprint 1987) (Jonathan Elliot

ed., 2d ed. 1901) [hereinafter Elliot’s Debates]. “The states, they con-

tended, could and must be relied on” to regulate legislative appointments.

Id.; see also Vieth v. Jubelirer, 541 U.S. 267, 275-76 (2004).

7

Alexander Hamilton described the need for congressional oversight of

the states as follows:

[The Framers] have submitted the regulation of elections for the

federal government, in the first instance, to the local administra-

tions; which, in ordinary cases, and when no improper views pre-

vail, may be both more convenient and more satisfactory; but

they have reserved to the national authority a right to interpose,

whenever extraordinary circumstances might render that interpo-

sition necessary to its safety.

The Federalist No. 59, at 168.

8

The Court has generally construed Congress’s authority under the

Elections Clause expansively. See, e.g., United States v. Mosley, 238 U.S.

383, 386 (1915) (authority to enforce the right of an eligible voter to cast

ballot and have ballot counted); Ex Parte Coy, 127 U.S. 731, 753-54

GONZALEZ v. ARIZONA 4127

always choose to exercise this power, “[w]hen exercised, the

action of Congress, so far as it extends and conflicts with the

regulations of the State, necessarily supersedes them.” Ex

Parte Siebold, 100 U.S. 371, 384 (1879); see also Foster v.

Love, 522 U.S. 67, 69 (1997) (stating that the Elections

Clause “is a default provision; it invests the States with

responsibility for the mechanics of congressional elections,

but only so far as Congress declines to preempt state legisla-

tive choices” (citation omitted)). Moreover, we have held that

the Elections Clause requires states to implement Congress’s

superseding regulations without compensation from the fed-

eral government. See Voting Rights Coal. v. Wilson, 60 F.3d

1411, 1415 (9th Cir. 1995). Thus, unlike virtually all other

provisions of the Constitution, the Elections Clause gives

Congress the power to “conscript state agencies to carry out”

federal mandates. Id. In sum, a state’s role in the creation and

implementation of federal election procedures under the Elec-

tions Clause is to administer the elections through its own

procedures until Congress deems otherwise; if and when Con-

gress does so, the states are obligated to conform to and carry

out whatever procedures Congress requires. See Foster, 522

U.S. at 69.

As should be clear from this overview, the Elections Clause

operates quite differently from the Supremacy Clause. The

Supremacy Clause provides that the laws of the United States

“shall be the supreme Law of the Land . . . any Thing in the

Constitution or Laws of any State to the Contrary notwith-

standing.” U.S. Const. art. VI, cl. 2. Under our system of dual

sovereignty, courts deciding whether a particular state law is

preempted under the Supremacy Clause must strive to main-

(1888) (authority to regulate conduct at any election coinciding with fed-

eral contest); Ex parte Yarbrough (The Ku-Klux Cases), 110 U.S. 651, 662

(1884) (authority to make additional laws for free, pure, and safe exercise

of right to vote); Ex parte Clarke, 100 U.S. 399, 404 (1879) (authority to

punish state election officers for violation of state duties vis-a-vis congres-

sional elections).

4128 GONZALEZ v. ARIZONA

tain the “delicate balance” between the States and the Federal

Government, Gregory v. Ashcroft, 501 U.S. 452, 460 (1991);

see Medtronic, 518 U.S. at 485, especially when Congress is

regulating in an area “traditionally occupied by the States,”

United States v. Locke, 529 U.S. 89, 108 (2000) (internal quo-

tation marks omitted); see also Cipollone v. Liggett Grp., 505

U.S. 504, 516 (1992). The Supreme Court has crafted special

guidelines to assist courts in striking this balance. First, courts

applying the Supremacy Clause are to begin with a presump-

tion against preemption. E.g., Altria Grp. v. Good, 555 U.S.

70, 77 (2008); Medtronic, 518 U.S. at 485. This principle

applies because, as the Court has recently noted, “respect for

the States as independent sovereigns in our federal system

leads us to assume that Congress does not cavalierly pre-empt

state-law causes of action.” Wyeth v. Levine, 129 S. Ct. 1187,

1195 n.3 (2009) (internal quotation marks omitted). Second,

the Court has adopted a “plain statement rule,” holding that

a federal statute preempts a state law only when it is the “clear

and manifest” purpose of Congress to do so. Gregory, 501

U.S. at 461 (internal quotation marks omitted). Only where

the state and federal laws cannot be reconciled do courts hold

that Congress’s enactments must prevail. See, e.g., Altria, 555

U.S. at 76-77.

[3] In contrast to the Supremacy Clause, which addresses

preemption in areas within the states’ historic police powers,

the Elections Clause affects only an area in which the states

have no inherent or reserved power: the regulation of federal

elections. See U.S. Term Limits, 514 U.S. at 804-05. As the

Supreme Court has explained, because federal elections did

not exist prior to the formation of the federal government, the

states’ sole authority to regulate such elections “aris[es] from

the Constitution itself,” id. at 805. Because states have no

reserved authority over the domain of federal elections, courts

deciding issues raised under the Elections Clause need not be

concerned with preserving a “delicate balance” between com-

peting sovereigns. Instead, the Elections Clause, as a standa-

lone preemption provision, establishes its own balance. For

GONZALEZ v. ARIZONA 4129

this reason, the “presumption against preemption” and “plain

statement rule” that guide Supremacy Clause analysis are not

transferable to the Elections Clause context. See Harkless v.

Brunner, 545 F.3d 445, 454 (6th Cir. 2008) (declining to

apply Supremacy Clause preemption principles in analyzing

the preemptive effect of the NVRA). Indeed, the Supreme

Court has suggested as much. In Foster, the Supreme Court

upheld the Fifth Circuit’s determination that a state election

law was voided by a federal election law; however, instead of

adopting the Fifth Circuit’s Supremacy Clause analysis, the

Court analyzed the claim under the Elections Clause, without

ever mentioning a presumption against preemption or plain

statement rule. See Foster, 522 U.S. 67, aff’g 90 F.3d 1026

(5th Cir. 1996). In fact, our survey of Supreme Court opinions

deciding issues under the Elections Clause reveals no case

where the Court relied on or even discussed Supremacy

Clause principles. Because the Elections Clause empowered

Congress to enact the NVRA, see Wilson, 60 F.3d at 1413-14,

the preemption analysis under that Clause applies here.

B

The Supreme Court first explained the principles of Elec-

tions Clause preemption in Siebold, 100 U.S. 371. In that

case, the Court likened the relationship between laws passed

by state legislatures and those enacted by Congress under the

Elections Clause to “prior and subsequent enactments of the

same legislature.” Id. at 384. “The State laws which Congress

sees no occasion to alter, but which it allows to stand, are in

effect adopted by Congress.” Id. at 388. Just as a subsequent

legislature is not required to make an “entirely new set” of

laws when modifying those of a prior legislature, neither is

Congress required to wholly take over the regulation of fed-

eral election procedures when choosing to “make or alter”

certain of the states’ rules. Id. at 384. There is no “intrinsic

difficulty in such co-operation” between the state and national

legislatures because the two governments do not possess an

“equality of jurisdiction” with respect to federal elections. Id.

4130 GONZALEZ v. ARIZONA

at 392. In all instances, “the laws of the State, in so far as they

are inconsistent with the laws of Congress on the same sub-

ject, cease to have effect as laws.” Id. at 397.

Over a century later, the Supreme Court clarified what con-

stitutes a conflict under an Elections Clause analysis. See Fos-

ter, 522 U.S. 67. Foster considered whether a congressional

enactment superseded a Louisiana statute regulating the same

federal election procedure. Id. at 68-69. Specifically, federal

law set the date for congressional elections as the Tuesday

after the first Monday in November. Id. at 68. A Louisiana

statute established an open primary in October for the offices

of United States Senator and Representative. Id. at 70. Only

if the open primary failed to result in a majority candidate

would a run off election between the top two candidates be

held on Congress’s specified election day. Id. In response to

a challenge by Louisiana voters, the Court unanimously held

that the state and federal acts conflicted and thus that the fed-

eral statute superseded the Louisiana law. Id. at 74.

The Court rejected the state’s claim that its statute and the

federal enactment could be construed harmoniously. Id. at

72-73. Louisiana asserted that “the open primary system con-

cern[ed] only the ‘manner’ of electing federal officials, not

the ‘time’ at which the elections will take place.” Id. at 72.

The Court discarded the state’s “attempt to draw this time-

manner line” as “merely wordplay” and an “imaginative char-

acterization” of the statutes. Id. at 72-73. Building upon the

principles from Siebold, the Court declined to adopt a strained

interpretation of the statutes to reconcile a potential disagree-

ment.9 See id. Rather, the Court emphasized Congress’s ple-

9

The dissent’s claim that in Foster there was a “blatant conflict”

between the state and federal election laws, dis. op. at 4213, is incorrect.

Rather, the petitioners in Foster proffered a reading of the state and fed-

eral statutes that at least technically avoided a conflict. See Foster, 522

U.S. at 72 (arguing that “because Louisiana law provides for a ‘general

election’ on federal election day in those unusual instances when one is

GONZALEZ v. ARIZONA 4131

nary authority not only to supplant state rules but to conscript

states to carry out federal enactments under the Elections

Clause, and found it enough that, under a natural reading, the

state and federal enactments addressed the same procedures

and were in conflict. Id. Refusing to pare the statute “down

to the definitional bone,” the Court held that the state enact-

ment was void. Id. at 72, 74.

Reading Siebold and Foster together, we derive the follow-

ing approach for determining whether federal enactments

under the Elections Clause displace a state’s procedures for

conducting federal elections. First, as suggested in Siebold,

we consider the state and federal laws as if they comprise a

single system of federal election procedures. Siebold, 100

U.S. at 384. If the state law complements the congressional

procedural scheme, we treat it as if it were adopted by Con-

gress as part of that scheme. See id. If Congress addressed the

same subject as the state law, we consider whether the federal

act has superseded the state act, based on a natural reading of

the two laws and viewing the federal act as if it were a subse-

quent enactment by the same legislature. Foster, 522 U.S. at

74; see id. at 72-73. If the two statutes do not operate harmo-

niously in a single procedural scheme for federal voter regis-

tration, then Congress has exercised its power to “alter” the

state’s regulation, and that regulation is superseded.

C

Before applying this Elections Clause analysis here, we

must understand the scope and application of the federal and

needed, the open primary system concerns only the ‘manner’ of electing

federal officials, not the ‘time’ at which the elections will take place”).

The Court rejected this reading as “merely wordplay.” Id. The dissent pro-

vides a similarly strained reading of the NVRA and Proposition 200, see

dis. op. at 4203-04, 4206-07 which likewise falls short, see infra at

4138-43.

4132 GONZALEZ v. ARIZONA

state statutes at issue, namely the NVRA and Proposition

200’s registration provision.

The NVRA prescribes three methods for registering voters

for federal elections. 42 U.S.C. § 1973gg-2(a). These methods

are: (1) “by application made simultaneously with an applica-

tion for a motor vehicle driver’s license,” id. § 1973gg-2(a)(1);10

(2) “by mail application” using the Federal Form prescribed

by the Election Assistance Commission (EAC),11 id.

§§ 1973gg-2(a)(2), 1973gg-4; and (3) “by application in per-

son” at sites designated in accordance with state law or state

voter registration agencies, id. § 1973gg-2(a)(3). States must

“establish procedures to register” voters through all three

methods “notwithstanding any other Federal or State law” and

“in addition to any other method of voter registration pro-

vided for under State law.” Id. § 1973gg-2(a).12

In connection with prescribing these three methods of voter

registration, the NVRA mandates the creation of two new

voter registration applications. First, the NVRA requires

states to create a combined driver’s license and voter registra-

tion application form (the “Motor Voter Form”) pursuant to

certain criteria set out in the statute. See id. § 1973gg-3. The

10

Under this method, any application for a driver’s license submitted to

a state motor vehicle authority “shall serve as an application for voter reg-

istration with respect to elections for Federal office unless the applicant

fails to sign the voter registration application.” § 1973gg-3(a)(1). This pro-

vision earned the statute its informal name: the “Motor Voter Law.”

11

The responsibilities of the EAC were formerly held by the Federal

Election Commission (FEC). When Congress passed the Help America

Vote Act or 2002 (HAVA), Pub. L. No. 107-252, 116 Stat. 1666, it created

the EAC, 42 U.S.C. § 15321, which eventually absorbed the FEC’s duties

under the NVRA, see 42 U.S.C. § 15532. In this opinion, we refer to both

entities as the EAC.

12

States that do not require registration to vote or allow election-day

registration at polling places are exempt from the NVRA. See § 1973gg-

2(b). These states are Idaho, Minnesota, New Hampshire, North Dakota,

Wisconsin, and Wyoming. See 75 Fed. Reg. 47,729-01, 47,730 (Aug. 9,

2010).

GONZALEZ v. ARIZONA 4133

NVRA also requires the EAC to create the Federal Form, a

nationally uniform voter application that applicants can use to

register by mail and in person at designated locations. See id.

§§ 1973gg-4, 1973gg-7(a)(2). In addition, states may (but are

not required to) create their own state mail voter registration

forms for federal elections (the “State Form”), so long as

these forms meet certain criteria in the NVRA. See id.

§ 1973gg-4(a)(2).

The NVRA sets out a broad framework for the contents of

the Federal Form, including specifying certain items that must

be included on the form, along with other items that cannot

be. See id. § 1973gg-7(b). Among other things, id. § 1973gg-

7(b) provides that the Federal Form “may require only such

identifying information . . . as is necessary to enable the

appropriate State election official to assess the eligibility of

the applicant and to administer voter registration and other

parts of the election process.” Id. § 1973gg-7(b)(1). Further,

the Federal Form must include a statement specifying “each

eligibility requirement (including citizenship)” for voting

along with an “attestation that the applicant meets each such

requirement,” id. § 1973gg-7(b)(2)(A)-(B), and must require

“the signature of the applicant, under penalty of perjury,” id.

§ 1973gg-7(b)(2)(C). In addition, the NVRA provides that the

Federal Form cannot include “any requirement for notariza-

tion or other formal authentication,” id. § 1973gg-7(b)(3).13

13

In full, section 1973-gg7(b) states that the Federal Form

(1) may require only such identifying information (including the

signature of the applicant) and other information (including data

relating to previous registration by the applicant), as is necessary

to enable the appropriate State election official to assess the eligi-

bility of the applicant and to administer voter registration and

other parts of the election process;

(2) shall include a statement that—

(A) specifies each eligibility requirement (including citizen-

ship);

4134 GONZALEZ v. ARIZONA

The NVRA directs the EAC, in consultation with “the chief

election officers of the States,” to develop the Federal Form

in a manner consistent with these broad guidelines. Id.

§ 1973gg-7(a)(2). The EAC discharged this statutory require-

ment by designing a Federal Form that met the criteria set

forth in section 1973gg-7(b). See 59 Fed. Reg. 32,311-01

(June 23, 1994), codified at 11 C.F.R., pt. 9428. As designed

by the EAC (and subsequently modified by HAVA, 42 U.S.C.

§§ 15301 et seq.), the Federal Form is a postcard.14 See 11

C.F.R. § 9428.5. The top of the form asks “Are you a citizen

of the United States of America?” and “Will you be 18 years

old on or before election day?” with boxes for the applicant

to check yes or no.15 Applicants who check “no” to either of

these questions are instructed not to complete the form. If the

(B) contains an attestation that the applicant meets each such

requirement; and

(C) requires the signature of the applicant, under penalty of

perjury;

(3) may not include any requirement for notarization or other for-

mal authentication; and

(4) shall include, in print that is identical to that used in the attes-

tation portion of the application—

(i) the voter eligibility requirements and penalties for false

applications set forth in § 1973gg-6(a)(5);

(ii) a statement that, if an applicant declines to register to

vote, the fact that the applicant has declined to register will

remain confidential and will be used only for voter registra-

tion purposes; and

(iii) a statement that if an applicant does register to vote, the

office at which the applicant submits a voter registration

application will remain confidential and will be used only for

voter registration purposes.

Id. § 1973gg-7(b).

14

The Federal Form is set forth in Appendix A.

15

These two questions and the associated instructions were added to the

Federal Form by HAVA. 42 U.S.C. § 15483(b)(4)(A)(i)-(ii).

GONZALEZ v. ARIZONA 4135

applicant checks “yes” to both questions, the form then

requests the applicant’s name, address, date of birth, tele-

phone number (optional), choice of party,16 race or ethnic

group,17 and “ID number.”18 It also requires the applicant to

attest (with a signature or mark) that he or she is a U.S. citi-

zen, meets his or her state’s voting eligibility requirements,

and has provided information that is “true to the best of [his

or her] knowledge under penalty of perjury.” No other proof

of U.S. citizenship is required. The Federal Form postcard

may be dropped into the mail or delivered in person to one of

the designated offices.

As noted above, in addition to mandating the creation and

use of the Federal Form, the NVRA allows states to develop

and use an optional State Form for registering voters for fed-

eral elections. See 42 U.S.C. § 1973gg-4(a)(2). If a state

chooses to create a State Form, that form must conform to the

broad framework for the contents of the Federal Form set

forth in section 1973gg-7(b). See id. Arizona chose to create

a State Form19 that is similar to the Federal Form but requires

that first-time voters and persons who have moved between

Arizona counties “also include proof of citizenship or the

16

“Choice of party” is required in some states for voters who wish to

participate in closed primaries. It is not required to register to vote in gen-

eral elections. See 59 Fed. Reg. at 32,314.

17

This box was included on the Federal Form to assist certain states in

their data collection efforts pursuant to § 5 of the VRA. Id. at 32,315-16.

18

The “ID number” is used for “election administration purposes.” 11

C.F.R. § 9428.4(a)(6), see 59 Fed. Reg. at 32,314 (explaining that ID num-

bers “are not necessary for determining the eligibility of the applicant,”

but rather are for assisting the states in administering the registration pro-

cess). The Federal Form’s instruction booklet provides state-specific

instructions for the “ID number” box: for Arizona, applicants must pro-

vide a driver’s license, non-operating identification license number, the

last four digits of a social security number, or write “None.” These instruc-

tions are consistent with Arizona’s election administration obligations

under HAVA. See infra at pp. 4144-45.

19

The Arizona State Form is set forth in Appendix B.

4136 GONZALEZ v. ARIZONA

form will be rejected.” According to the State Form instruc-

tions, an applicant can satisfy this proof of citizenship require-

ment by writing in a designated box on the State Form the

number of the applicant’s Arizona driver’s license or nonop-

erating identification license issued after October 1, 1996,20

alien registration number, or specified tribal identification

number (as relevant). If the applicant lacks such a number, the

applicant must include a photocopy of one of the acceptable

documents listed on the State Form (such as a birth certificate,

U.S. passport, tribal document, or the like) along with the

form itself.

[4] While the NVRA permits states to use their own State

Forms to register voters for federal elections, the NVRA still

requires every state to “accept and use” the Federal Form

developed by the EAC. See id. § 1973gg-4(a)(2) (“In addition

to accepting and using [the Federal Form], a State may

develop and use a mail voter registration form that meets all

of the criteria stated in section 1973gg-7(b) of this title for the

registration of voters in elections for Federal office.” (empha-

sis added)). In this way, the NVRA guarantees that an appli-

cant in any state seeking to register to vote in federal elections

may do so using the Federal Form.

D

Having reviewed the relevant provisions of the NVRA, we

now turn to Proposition 200’s registration provision, which

states: “The county recorder shall reject any application for

registration that is not accompanied by satisfactory evidence

of United States citizenship.” Ariz. Rev. Stat. § 16-166(F).

The statute defines satisfactory evidence of U.S. citizenship to

include the number of the applicant’s driver’s license or non-

operating identification license, certain numbers associated

20

Arizona started requiring applicants to provide documentation of their

lawful status as U.S. residents as a condition of receiving a driver’s license

or non-operating identification license after October 1, 1996.

GONZALEZ v. ARIZONA 4137

with Native American tribal status, the number of a certificate

of naturalization (or the in-person presentation of naturaliza-

tion documents), or a legible photocopy of a U.S. birth certifi-

cate or passport.21 See id.

By its terms, this proof of citizenship requirement applies

to the Federal Form as well as to Arizona’s State Form.22 In

21

Section 16-166(F) provides the following list of approved identifica-

tion documents:

1. The number of the applicant’s driver license or nonoperating

identification license issued after October 1, 1996 by the depart-

ment of transportation or the equivalent governmental agency of

another state within the United States if the agency indicates on

the applicant’s driver license or nonoperating identification

license that the person has provided satisfactory proof of United

States citizenship.

2. A legible photocopy of the applicant’s birth certificate that ver-

ifies citizenship to the satisfaction of the county recorder.

3. A legible photocopy of pertinent pages of the applicant’s

United States passport identifying the applicant and the appli-

cant’s passport number or presentation to the county recorder of

the applicant’s United States passport.

4. A presentation to the county recorder of the applicant’s United

States naturalization documents or the number of the certificate

of naturalization. If only the number of the certificate of natural-

ization is provided, the applicant shall not be included in the reg-

istration rolls until the number of the certificate of naturalization

is verified with the United States immigration and naturalization

service by the county recorder.

5. Other documents or methods of proof that are established pur-

suant to the immigration reform and control act of 1986.

6. The applicant’s bureau of Indian affairs card number, tribal

treaty card number or tribal enrollment number.

22

Proposition 200 also amended state law to require Arizona’s State

Form to “contain . . . [a] statement that the applicant shall submit evidence

of United States citizenship with the application and that the registrar shall

reject the application if no evidence of citizenship is attached.” Ariz. Rev.

Stat. § 16-152(A)(23). Because this provision does not affect the Federal

Form, we do not consider it here.

4138 GONZALEZ v. ARIZONA

other words, Proposition 200’s registration provision directs

Arizona county recorders to reject every Federal Form that is

submitted without the specified evidence of citizenship.

According to the Arizona Election Procedures Manual, which

has the force and effect of law, see Ariz. Rev. Stat. § 16-452,

if a rejected applicant wants to make a second attempt to pro-

vide evidence of citizenship, he or she must submit an entirely

new voter registration form in order to do so.23

E

We now turn to Gonzalez and ITCA’s contention that the

NVRA’s requirement that states “accept and use” the Federal

Form supersedes Proposition 200’s registration provision as

applied to applicants using the Federal Form.24

[5] In assessing this argument, we apply the Elections

Clause framework we derived from Siebold and Foster and

consider the NVRA and Proposition 200’s registration provi-

sion as if they comprise a single system of federal election

procedures. With respect to mail voter registration, the NVRA

provides that “[e]ach State shall accept and use” the Federal

Form “for the registration of voters in elections for Federal

office.” 42 U.S.C. § 1973gg-4(a)(1). By contrast, Proposition

200’s registration provision directs county recorders to “reject

any application for registration that is not accompanied by

satisfactory evidence of United States citizenship,” as defined

23

The manual instructs county recorders:

If [a voter registration] form is not accompanied by proper proof

of citizenship, the voter registration form is not valid and either

will not be entered into the system or if it was entered into the

system, the record shall be canceled. If the registrant subse-

quently provides proof of citizenship, it must be accompanied by

a new voter registration form and a new registration date.

Arizona Secretary of State Elections Procedures Manual (Oct. 2007).

24

Gonzalez and ITCA do not challenge Proposition 200’s registration

provision as applied to Arizona’s State Form.

GONZALEZ v. ARIZONA 4139

by Arizona law. Ariz. Rev. Stat. § 16-166(F). When read

together, the federal and state enactments treat the same sub-

ject matter, namely, the procedure for registering by mail to

vote in federal elections using the Federal Form, but they do

not operate harmoniously. In fact, these procedures are seri-

ously out of tune with each other in several ways.

First, the NVRA requires a county recorder to accept and

use the Federal Form to register voters for federal elections,

whereas the registration provision requires the same county

recorder to reject the Federal Form as insufficient for voter

registration if the form does not include proof of U.S. citizen-

ship. Arizona attempts to harmonize these procedures, argu-

ing that because the county recorder will accept the Federal

Form for voter registration so long as it includes satisfactory

evidence of citizenship, the county recorder is in fact comply-

ing with the NVRA’s mandate to “accept and use” the Federal

Form, per 42 U.S.C. § 1973gg-4(a)(1). Rejection of the Fed-

eral Form in certain circumstances, Arizona argues, does not

in itself mean that the state is failing to accept and use the

form. Indeed, Arizona asserts, Congress must have contem-

plated that some applicants using the Federal Form would be

rejected, because the NVRA directs states to notify “each

applicant of the disposition of [his or her] application.” Id.

§ 1973gg-6(a)(2).

[6] We disagree. Although Arizona has offered a creative

interpretation of the state and federal statutes in an effort to

avoid a direct conflict, we do not strain to reconcile a state’s

federal election regulations with those of Congress, but con-

sider whether the state and federal procedures operate harmo-

niously when read together naturally. See Foster, 522 U.S. at

72-74; Siebold, 100 U.S. at 384. Here, under a natural reading

of the NVRA, Arizona’s rejection of every Federal Form sub-

mitted without proof of citizenship does not constitute “ac-

cepting and using” the Federal Form. Arizona cannot cast

doubt on this conclusion by pointing out that the NVRA

allows states to reject applicants who fail to demonstrate their

4140 GONZALEZ v. ARIZONA

eligibility pursuant to the Federal Form. Congress clearly

anticipated that states would reject applicants whose

responses to the Federal Form indicate they are too young to

vote, do not live within the state, or have not attested to being

U.S. citizens. Indeed, the NVRA instructs the EAC to request

information on the Federal Form for the precise purpose of

“enabl[ing] the appropriate State election official to assess the

eligibility of the applicant.” 42 U.S.C. § 1973gg-7(b)(1).

Thus, a state that assesses an applicant’s eligibility based on

the information requested on the Federal Form is “accepting

and using” the form in exactly the way it was meant to be

used. In contrast, Proposition 200’s registration provision

directs county recorders to assess an applicant’s eligibility

based on proof of citizenship information that is not requested

on the Federal Form, and to reject all Federal Forms that are

submitted without such proof. Rejecting the Federal Form

because the applicant failed to include information that is not

required by that form is contrary to the form’s intended use

and purpose.

The dissent likewise attempts to justify Arizona’s rejection

of the Federal Form, but rests its arguments almost exclu-

sively on the fact that § 1973gg-4(a)(2) allows states to

develop and use a State Form, which may include require-

ments that are not included in the Federal Form. See dis. op

at 4200-03, 4204-06. According to the dissent, because states

may impose additional proof-of-citizenship requirements on

applicants using the State Form, it necessarily follows that

states may impose the same proof-of-citizenship requirements

on applicants using the Federal Form; that is, that they may

reject Federal Forms that do not include the additional proof

of citizenship. See dis. op. at 4203-06. But there is no logical

connection between the dissent’s premise and its conclusion,

which is contrary to the text of the statute. The NVRA clearly

requires states to accept and use the Federal Form (as

designed by the EAC) “[i]n addition to” the State Form.

GONZALEZ v. ARIZONA 4141

The NVRA’s State Form provision, § 1973gg-4(a)(2),

merely gives a state more options. Congress could have

required all states to use only the Federal Form, as designed

by the EAC, for federal elections. If Congress had done so,

then states could not use their state registration forms to regis-

ter applicants for federal elections. Instead, Congress allowed

States to use their state registration forms to register appli-

cants for both state and federal elections (provided the state

form complies with § 1973gg-7(b)).25 But states cannot reject

applicants who register for federal elections who use the Fed-

eral Form. There is nothing illogical or inconsistent about

requiring states to accept the federal registration form in addi-

tion to their own state form.

In order to avoid the clear import of the NVRA’s text, the

dissent argues that the Federal Form merely establishes the

default minimum or baseline registration requirements. See

dis. op. at 4203-04, 4209. In effect, the dissent wants to

replace the words “in addition to” with the words “instead

of,” so that “a State may develop and use a mail voter regis-

tration form that meets all of the criteria stated in section

1973gg-7(b) of this title” instead of “accepting and using” the

Federal Form. We have no authority to rewrite the statute,

however, and reject the dissent’s interpretation as being

inconsistent with the plain language. See id. (“In addition to

accepting and using [the Federal Form], a State may develop

and use a mail voter registration form that meets all of the

criteria stated in section 1973gg-7(b) of this title for the regis-

tration of voters in elections for Federal office.” (emphasis

added)).

25

The dissent therefore has it exactly backwards in asserting that, under

our interpretation of § 1973gg-4(a)(2), states may not use their state regis-

tration forms to register “voters in elections for Federal office.” Dis. op.

at 4208. States may use their state registration forms to register voters in

elections for federal office; they simply may not require registrants to use

the State Form (or the equivalent of the State Form, namely, the Federal

Form altered to include additional state requirements).

4142 GONZALEZ v. ARIZONA

[7] Second, Proposition 200’s registration provision

clashes with the NVRA’s delegation of authority to the EAC

(not the states) to determine the contents of the Federal Form.

See id. § 1973gg-7(a)(2). While states may suggest changes to

the Federal Form, the EAC has the ultimate authority to adopt

or reject those suggestions. See id. § 1973gg-7(a). Here the

EAC sent Arizona a letter rejecting its proposal to modify the

Federal Form to require applicants to present documentary

proof of citizenship in order to register, see infra p. 4148 n.29,

but Arizona nevertheless proceeded to impose this additional

requirement on applicants using the Federal Form. Arizona’s

insistence on engrafting an additional requirement on the Fed-

eral Form, even in the face of the EAC’s rejection of its pro-

posal, accentuates the conflict between the state and federal

procedures.26

Arizona attempts to minimize the clash between the NVRA

and Proposition 200 by noting that a proof of citizenship

requirement is consistent with the broad framework set out by

Congress in section 1973gg-7(b); specifically, Arizona notes

that the NVRA permits the Federal Form to seek such infor-

mation as is necessary to “assess the eligibility of the appli-

cant,” id. § 1973gg-7(b)(1), and does not expressly preclude

a requirement that applicants provide proof of citizenship.

Further, Arizona asserts that although Congress provided that

26

Arizona argues that McKay v. Thompson, 226 F.3d 752, 755-56 (6th

Cir. 2000), supports its conclusion that states may add requirements to the

Federal Form, so long as the NVRA does not expressly forbid those

requirements. Arizona is misreading McKay. In that case, the court

rejected a prospective voter’s objection to Tennessee’s practice of requir-

ing a full social security number as a precondition to successful registra-

tion, see id. at 754, stating that “[t]he NVRA does not specifically forbid

use of social security numbers.” Id. at 756. But this holding does not help

Arizona because the Federal Form allows states to instruct applicants to

provide their full social security numbers in the “ID number” box on the

Federal Form (and Tennessee’s instructions do so). See supra p. 4135 &

n.18. McKay therefore does not support the proposition that a state may

condition registration on an applicant’s provision of information that is not

requested on the Federal Form.

GONZALEZ v. ARIZONA 4143

the mail voter registration form “may not include any require-

ment for notarization or other formal authentication,” id.

§ 1973gg-7(b)(3), Arizona’s demand for proof of citizenship

does not amount to such a requirement. This argument misses

the point. Even assuming, without deciding, that Arizona is

correct in its interpretation of section 1973gg-7(b), this would

mean only that the NVRA allows Arizona to include a proof

of citizenship requirement on its State Form. See id.

§ 1973gg-4(a)(2) (allowing a state to “develop and use a mail

voter registration form that meets all of the criteria stated in

section 1973gg-7(b)”). It would not mean that Arizona has

authority to add this requirement to the Federal Form. Con-

gress entrusted that decision to the EAC. Once the EAC deter-

mined the contents of the Federal Form, Arizona’s only role

was to make that form available to applicants and to “accept

and use” it for the registration of voters.

[8] Third, Proposition 200’s registration provision is dis-

cordant with the NVRA’s goal of streamlining the registration

process. See, e.g., Nat’l Coal. for Students with Disabilities

Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 285 (4th Cir.

1998) (“Congress passed the NVRA . . . to make it easier to

register to vote . . . .”); ACORN v. Miller, 129 F.3d 833, 835

(6th Cir. 1997) (“In an attempt to reinforce the right of quali-

fied citizens to vote by reducing the restrictive nature of voter

registration requirements, Congress passed the [NVRA].”).

While the EAC chose to design the Federal Form as a post-

card, which could be easily filled out and mailed on its own,

Proposition 200’s registration provision makes the Federal

Form much more difficult to use. For example, nothing on the

face of the Federal Form or in the state-specific instructions

for Arizona indicates that some applicants may need to pro-

vide a full social security number, a tribal identification num-

ber, or an alien registration number, as Proposition 200

requires.27 Nor does the Federal Form instruct that additional

27

Because the Federal Form can be used as a mail-in postcard, the dis-

sent’s credit card analogy, see dis. op. at 4204, is not on point. A con-

4144 GONZALEZ v. ARIZONA

documents, such as birth certificates or passports, must be

provided by some applicants. Even if an applicant were aware

of Arizona’s requirement to provide documentary proof of cit-

izenship with the Federal Form, the applicant would have to

locate the required document, photocopy it, and enclose the

photocopy with the form in an envelope for mailing. In short,

much of the value of the Federal Form in removing obstacles

to the voter registration process is lost under Proposition

200’s registration provision.

Notwithstanding these concerns, Arizona asserts that Prop-

osition 200’s registration provision imposes little additional

burden on applicants, because only a small minority of appli-

cants lack a driver’s license number, tribal identification num-

ber, or alien registration number, all of which could suffice to

show citizenship and can easily be written on the Federal

Form. For this reason, Arizona contends, its proof of citizen-

ship requirement is not excessively burdensome under the

standard set forth in Crawford v. Marion County Election

Board, 553 U.S. 181, 199-200 (2008) (Stevens, J., announc-

ing the judgment of the Court). This argument misses the

mark. The goal of the NVRA was to streamline the registra-

tion process for all applicants; the fact that Proposition 200’s

registration provision only partially undermines this goal does

not make it harmonious with the NVRA. Nor does Crawford

provide support for Arizona’s argument. In Crawford, the

Court considered whether a polling place requirement

imposed a substantial burden on the right to vote, in violation

of the Fourteenth Amendment. See id. at 187. Even if Arizona

is correct that Proposition 200’s registration provision does

sumer would rightly cry foul if a merchant claimed it would “accept and

use” mailed-in credit card information for a purchase, but then refused to

complete the transaction because the consumer failed to include additional

information that the merchant had not requested. By the same token, the

Federal Form does not request documentary proof of citizenship. Because

a state must “accept and use” this form it cannot reject it merely because

an applicant has mailed it in without including information that is not

expressly required.

GONZALEZ v. ARIZONA 4145

not impose such a burden, this conclusion sheds no light on

the question before us here: whether the registration provision

is displaced by the NVRA under an Elections Clause analysis.

F

Because on its face the NVRA does not give states room

to add their own requirements to the Federal Form, Arizona

suggests that Congress’s subsequent enactment of HAVA per-

mits us to reinterpret the NVRA to allow states to impose

additional requirements on applicants for voter registration.

Again, we disagree, because by its terms HAVA precludes

such an interpretation.

Congress enacted HAVA in response to the 2000 Presiden-

tial election and the ensuing controversial Florida recount. See

Fla. State Conference of NAACP v. Browning, 522 F.3d 1153,

1155 (11th Cir. 2008). For the most part, the NVRA and

HAVA operate in separate spheres: the NVRA regulates voter

registration, whereas HAVA is concerned with updating elec-

tion technologies and other election-day issues at polling

places. However, a handful of provisions in HAVA relate to

the voter registration process, primarily by creating mecha-

nisms through which states can ensure that the person who

appears to cast a ballot at the polls is the same person who

registered to vote. Relevant here, HAVA requires states to

obtain (or assign) unique identification numbers for all regis-

tered voters: each applicant must provide his or her driver’s

license number or the last four digits of his or her social

security number on the voter registration form, or if the appli-

cant lacks such a number, the state must assign the applicant

a number “which will serve to identify the applicant for voter

registration purposes.” 42 U.S.C. § 15483(a)(5)(A)(i)-(ii). In

addition, states are to take steps to verify that the applicant’s

claimed identity matches the identification number he or she

provided. See id. § 15483(a)(5)(A)(iii) (requiring states to

“determine whether the [identification] information provided

4146 GONZALEZ v. ARIZONA

by an individual is sufficient to meet the requirements” of

HAVA); see also Crawford, 553 U.S. at 192.

HAVA also includes language limiting its scope. It clarifies

that “[t]he requirements established by [HAVA] are minimum

requirements and nothing in [HAVA] shall be construed to

prevent a State from establishing election technology and

administration requirements that are more strict than the

requirements established under [HAVA] so long as such State

requirements are not inconsistent with the Federal require-

ments under [HAVA] or any law described in section 15545

of this title.” Id. § 15484. Section 15545 is HAVA’s savings

clause: it provides that except for the changes to the NVRA

specified in HAVA, “nothing in this Act may be construed to

authorize or require conduct prohibited under [a number of

federal laws, including the NVRA], or to supersede, restrict,

or limit the application of [those federal laws].” Id.

§ 15545(a).

Arizona argues that HAVA gives it the authority to impose

additional requirements on applicants using the Federal Form

for two reasons. First, Arizona contends that because HAVA

directs states to verify the accuracy of the driver’s license or

social security numbers provided on the Federal Form, see id.

§ 15483(a)(5)(A)(iii), Arizona must likewise have the author-

ity to verify the accuracy of other information on the Federal

Form, including an applicant’s claim of citizenship. Second,

Arizona asserts that because HAVA establishes only “mini-

mum requirements,” and authorizes states to develop “elec-

tion technology and administration requirements that are more

strict than [HAVA’s] requirements,” id. § 15484, HAVA

gives states a green light to impose stricter requirements on

voter registration.

Both of these arguments fail in light of HAVA’s savings

clause, which makes clear that Congress intended to preserve

the NVRA except as to the specific changes it enacted in

HAVA. While HAVA made a handful of changes to the

GONZALEZ v. ARIZONA 4147

NVRA, it did not add a proof of citizenship requirement to the

Federal Form and did not authorize states to do so. For the

reasons explained above, an interpretation of HAVA that

allows states to override the EAC’s authority in designing the

Federal Form would “supersede, restrict, or limit the applica-

tion of” the NVRA. Id. § 15545(a). Because the savings

clause precludes such an interpretation, we decline to adopt

one. Therefore, HAVA does not provide Arizona the authori-

zation it seeks.

G

We recognize Arizona’s concern about fraudulent voter

registration. Nevertheless, the Elections Clause gives Con-

gress the last word on how this concern will be addressed in

the context of federal elections. As is evidenced by one of the

four articulated purposes of the NVRA, which is “to protect

the integrity of the electoral process,” id. § 1973gg(b)(3),

Congress was well aware of the problem of voter fraud when

it passed the act and provided for numerous fraud protections

in the NVRA.28

With respect to the Federal Form, Congress delegated to

the EAC the decision of how to balance the need “to establish

procedures that will increase the number of eligible citizens

who register to vote in elections for Federal office” and the

28

These safeguards include the NVRA’s requirement that the Federal

Form, the State Forms, and the Motor Voter Forms contain an attestation

clause that sets out the requirements for voter eligibility. Id. §§ 1973gg-

3(c)(2)(C)(i)-(ii), 1973gg- 7(b)(2)(A)-(B). Applicants are required to sign

these forms under penalty of perjury, id. §§ 1973gg-3(c)(2)(C)(iii),

1973gg-7(b)(2)(C), and persons who knowingly and willfully engage in

fraudulent registration practices are subject to criminal penalties, id.

§ 1973gg-10(2). In addition, the NVRA allows states to require first-time

voters who register by mail to vote in person at the polling place, where

the voter’s identity can be confirmed. See id. § 1973gg-4(c). Finally, sec-

tion 1973gg-6 requires states to give notice to applicants of the disposition

of their applications, which states may use as a means to detect fraudulent

registrations. See id. § 1973gg-6(a)(2).

4148 GONZALEZ v. ARIZONA

need to protect “the integrity of the electoral process,” id.

§ 1973gg(b)(1), (3). The EAC struck this balance by requiring

applicants to attest to their citizenship under penalty of per-

jury, but not requiring other proof of citizenship. See 59 Fed.

Reg. at 32,316 (“The issue of U.S. citizenship is addressed

within the oath required by the Act and signed by the appli-

cant under penalty of perjury. To further emphasize this pre-

requisite to the applicant, the words ‘For U.S. Citizens Only’

will appear in prominent type on the front cover of the

national mail voter registration form.”). Though Arizona has

eloquently expressed its reasons for striking the balance dif-

ferently, the federal determination controls in this context. See

ACORN v. Edgar, 56 F.3d 791, 795-96 (7th Cir. 1995) (reject-

ing Illinois’s argument that because the “motor voter” compo-

nent of the NVRA “opens the door to voter fraud,” the state

was entitled to refuse to comply with the law).

[9] In sum, the NVRA and Proposition 200’s registration

provision, when interpreted naturally, do not operate harmoni-

ously as a single procedural scheme for the registration of vot-

ers for federal elections. Therefore, under Congress’s

expansive Elections Clause power, we must hold that the reg-

istration provision, when applied to the Federal Form, is pre-

empted by the NVRA.29

29

We reach our conclusion based on the language and structure of the

statute, and therefore do not rely on the EAC’s interpretation of the NVRA

or the NVRA’s legislative history. While ITCA maintains that the EAC’s

view is entitled to some level of deference under Skidmore v. Swift & Co.,

323 U.S. 134 (1944), Arizona argues that Congress did not delegate any

authority to the EAC to interpret the NVRA, see 42 U.S.C. § 15329, and

thus deference is not appropriate. We need not resolve this dispute, but

merely note that both the EAC’s view and the NVRA’s legislative history

are consistent with our holding. In its letter to Arizona, the EAC construed

the NVRA as not permitting states to “condition acceptance of the Federal

Form upon receipt of additional proof.” With respect to the legislative his-

tory, the NVRA’s Conference Report, which we have held is the most

authoritative and reliable legislative material, see, e.g., Nw. Forest Res.

Council v. Glickman, 82 F.3d 825, 835 (9th Cir. 1996), shows that Con-

GONZALEZ v. ARIZONA 4149

III

Because we hold that the NVRA supersedes Proposition

200’s registration provision,30 the remainder of our analysis

focuses solely on the validity of Proposition 200’s polling

place provision. Proposition 200 amended section 16-579 of

the Arizona Revised Statutes to require that a voter “present

one form of identification that bears the name, address and

photograph of the elector or two different forms of identifica-

tion that bear the name and address of the elector” as a prereq-

uisite to receiving a ballot. Ariz. Rev. Stat. § 16-579(A)

(2005). The Secretary of State, acting under statutory author-

ity, see Ariz. Rev. Stat. § 16-452(A), (B), promulgated a pro-

cedure specifying the “forms of identification” accepted under

the statute, which included photograph-bearing documents

such as driver’s licenses as well as non-photograph-bearing

documents such as utility bills or bank statements. In 2009,

the state legislature amended section 16-579 to codify that pro-

cedure.31

gress rejected an amendment to the NVRA which would have provided

that “nothing in this Act shall prevent a State from requiring presentation

of documentation relating to citizenship of an applicant for voter registra-

tion,” H.R. Rep. No. 103-66, at 23 (1993), reprinted in 1993 U.S.C.C.A.N.

140, 148. The conferees explained that the amendment was not “consistent

with the purposes of” the NVRA and “could effectively eliminate, or seri-

ously interfere with, the mail registration program of the Act.” Id.

30

Congress’s authority under the Elections Clause is limited to preempt-

ing state regulations as they relate to federal elections. Therefore, our

holding invalidating Proposition 200’s registration provision does not pre-

vent Arizona from applying a proof of citizenship requirement to voter

registrations for state elections. However, because Arizona has presented

its system of voter registration as concurrently registering voters for state

and federal elections, we do not consider whether Proposition 200’s regis-

tration provision, as applied only to voter registrations for state elections,

is valid under Gonzalez and ITCA’s remaining claims.

31

Section 16-579(A)(1) now provides that a voter must “present any of

the following” before being permitted to vote:

4150 GONZALEZ v. ARIZONA

Gonzalez and ITCA challenge Proposition 200’s polling

place provision on three grounds: that it is a prohibited voting

qualification under section 2 of the VRA, an unconstitutional

poll tax under the Twenty-fourth Amendment, and a violation

of the Fourteenth Amendment’s Equal Protection Clause. We

first consider Gonzalez’s argument that Proposition 200’s

polling place provision violates section 2 of the VRA.

(a) A valid form of identification that bears the photograph, name

and address of the elector that reasonably appear to be the same

as the name and address in the precinct register, including an Ari-

zona driver license, an Arizona nonoperating identification

license, a tribal enrollment card or other form of tribal identifica-

tion or a United States federal, state or local government issued

identification. Identification is deemed valid unless it can be

determined on its face that it has expired.

(b) Two different items that contain the name and address of the

elector that reasonably appear to be the same as the name and

address in the precinct register, including a utility bill, a bank or

credit union statement that is dated within ninety days of the date

of the election, a valid Arizona vehicle registration, an Arizona

vehicle insurance card, an Indian census card, tribal enrollment

card or other form of tribal identification, a property tax state-

ment, a recorder’s certificate, a voter registration card, a valid

United States federal, state or local government issued identifica-

tion or any mailing that is labeled as “official election material.”

Identification is deemed valid unless it can be determined on its

face that it has expired.

(c) A valid form of identification that bears the photograph, name

and address of the elector except that if the address on the identi-

fication does not reasonably appear to be the same as the address

in the precinct register or the identification is a valid United

States Military identification card or a valid United States pass-

port and does not bear an address, the identification must be

accompanied by one of the items listed in subdivision (b) of this

paragraph.

GONZALEZ v. ARIZONA 4151

A

[10] Section 2(a) of the VRA prohibits states from impos-

ing any voting qualification that “results in a denial or

abridgement of the right of any citizen of the United States to

vote on account of race or color.” 42 U.S.C. § 1973(a). A vio-

lation of section 2 is established “if, based on the totality of

circumstances, it is shown that the political processes leading

to nomination or election in the State or political subdivision

are not equally open to participation” by members of a pro-

tected class, “in that its members have less opportunity than

other members of the electorate [1] to participate in the politi-

cal process and [2] to elect representatives of their choice.” Id.

§ 1973(b). Said otherwise, a plaintiff can prevail in a section

2 claim only if, “based on the totality of the circumstances,

. . . the challenged voting practice results in discrimination on

account of race.” Farrakhan v. Washington, 338 F.3d 1009,

1017 (9th Cir. 2003) (emphasis omitted); see also United

States v. Blaine Cnty., 363 F.3d 897, 903 (9th Cir. 2004).

Although proving a violation of § 2 does not require a show-

ing of discriminatory intent, only discriminatory results, see

Chisom v. Roemer, 501 U.S. 380, 383-84 (1991); Ruiz v. City

of Santa Maria, 160 F.3d 543, 557 (9th Cir. 1998) (per

curiam), proof of “causal connection between the challenged

voting practice and a prohibited discriminatory result” is cru-

cial, Smith v. Salt River Project Agric. Improvement & Power

Dist., 109 F.3d 586, 595 (9th Cir. 1997) (internal quotation

marks and brackets omitted); see also id. (“[A] bare statistical

showing of disproportionate impact on a racial minority does

not satisfy the § 2 ‘results’ inquiry.”). Said otherwise, a § 2

challenge “based purely on a showing of some relevant statis-

tical disparity between minorities and whites,” without any

evidence that the challenged voting qualification causes that

disparity, will be rejected. Id.32

32

This approach applies both to claims of vote denial and of vote dilu-

tion. Id. at 596 n.8.

4152 GONZALEZ v. ARIZONA

In applying the totality of the circumstances test, “a court

must assess the impact of the contested structure or practice

on minority electoral opportunities ‘on the basis of objective

factors.’ ” Thornburg v. Gingles, 478 U.S. 30, 44 (1986)

(quoting S. Rep. No. 97-417, at 27 (1982), reprinted in 1982

U.S.C.C.A.N. 177, 205). In Gingles, the Supreme Court cited

a non-exhaustive list of nine factors (generally referred to as

the “Senate Factors” because they were discussed in the Sen-

ate Report on the 1982 amendments to the VRA) that courts

should consider in making this totality of the circumstances

assessment. Id. at 44-45. Relevant here, the factors direct

courts to consider the history of official state discrimination

against the minority with respect to voting, the extent to

which voting in the state is racially polarized, and “the extent

to which members of the minority group in the state or politi-

cal subdivision bear the effects of discrimination in such areas

as education, employment and health, which hinder their abil-

ity to participate effectively in the political process.” Id. at

36-37 (quoting S. Rep. No. 97-417, at 28-29, reprinted in

1982 U.S.C.C.A.N. at 206-07); see Farrakhan, 338 F.3d at

1016, 1020. “[T]here is no requirement that any particular

number of factors be proved, or that a majority of them point

one way or the other.” Gingles, 478 U.S. at 45 (quoting S.

Rep. No. 97-417, at 29, reprinted in 1982 U.S.C.C.A.N. at

209) (internal quotation marks omitted).

Gonzalez argues that Proposition 200 disparately impacts

Latino voters, unlawfully diluting their right to vote and deny-

ing them the right to vote by providing them with less oppor-

tunity than other members of the electorate to participate in

the political process. Considering both Proposition 200’s reg-

istration requirement and its requirement that voters who cast

ballots at the polls present specified identification, the district

court determined, after “examining the facts as a whole, [that]

Proposition 200 does not have a statistically significant dispa-

rate impact on Latino voters.”33 In considering the Senate Fac-

33

Judge Pregerson’s dissent relies heavily on statistical analysis pre-

GONZALEZ v. ARIZONA 4153

tors listed above, the district court found that Latinos had

suffered a history of discrimination in Arizona that hindered

their ability to participate in the political process fully, that

there were socioeconomic disparities between Latinos and

whites in Arizona, and that Arizona continues to have some

degree of racially polarized voting. Nevertheless, the district

court concluded that Gonzalez’s claim failed because there

was no proof of a causal relationship between Proposition 200

and any alleged discriminatory impact on Latinos. The district

court noted that not a single expert testified to a causal con-

nection between Proposition 200’s requirements and the

observed difference in the voting rates of Latinos, and that

Gonzalez had failed to explain how Proposition 200’s require-

ments interact with the social and historical climate of dis-

crimination to impact Latino voting in Arizona. Therefore, the

district court concluded that Gonzalez had not proved that

Proposition 200 results in discrimination “on account of race

or color.”

Because a § 2 analysis requires the district court to engage

in a “searching practical evaluation of the ‘past and present

reality,’ ” Gingles, 478 U.S. at 45 (quoting S. Rep. 97-417, at

30, reprinted in 1982 U.S.C.C.A.N. at 208), a district court’s

examination in such a case is “intensely fact-based and local-

ized,” Salt River, 109 F.3d at 591. We therefore “[d]efer[ ] to

the district court’s superior fact-finding capabilities,” id., and

review for clear error the district court’s findings of fact,

including its ultimate finding whether, under the totality of the

circumstances, the challenged practice violates § 2, Old Per-

pared by the plaintiffs’ expert, Dr. Louis Lanier. Dis. op. at 4197-98. The

state’s expert, however, testified that Lanier’s results were unreliable in

light of several factors, including the absence of evidence that the Latinos

whose votes went uncounted were qualified to vote. In holding that the

plaintiffs had not shown that Proposition 200 had a statistically significant

impact on Latino voters, the district court implicitly rejected Lanier’s testi-

mony, a conclusion that is “plausible in light of the record viewed in its

entirety.” Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).

4154 GONZALEZ v. ARIZONA

son v. Cooney, 230 F.3d 1113, 1119 (9th Cir. 2000) (citing

Gingles, 478 U.S. at 78-79). We review de novo the district

court’s legal determinations and mixed findings of law and

fact. Salt River, 109 F.3d at 591.

[11] The district court did not clearly err in concluding that

Gonzalez failed to establish that Proposition 200’s polling

place provision, see Ariz. Rev. Stat. § 16-579, had a disparate

impact on Latinos. To prove a § 2 violation, Gonzalez had to

establish that this requirement, as applied to Latinos, caused

a prohibited discriminatory result. Here, Gonzalez alleged that

“Latinos, among other ethnic groups, are less likely to possess

the forms of identification required under Proposition 200 to

. . . cast a ballot,” but produced no evidence supporting this

allegation.34 The record does include evidence of Arizona’s

general history of discrimination against Latinos and the exis-

tence of racially polarized voting. But Gonzalez adduced no

evidence that Latinos’ ability or inability to obtain or possess

identification for voting purposes (whether or not interacting

with the history of discrimination and racially polarized vot-

ing) resulted in Latinos having less opportunity to participate

in the political process and to elect representatives of their

choice. Without such evidence, we cannot say that the district

court’s finding that Gonzalez failed to prove causation was

clearly erroneous. Therefore we affirm the district court’s

denial of Gonzalez’s VRA claim.35

34

The dissent likewise fails to cite any evidence to support the theory

that Proposition 200’s polling place provision “has the effect of keeping

Latino voters away from the polls” because it “evokes fear of discrimina-

tion.” Dis. op. at 4200.

35

Gonzalez also argues that the district court erred in evaluating one of

the Senate Factors and in concluding that the disparate impact on Latinos

was statistically insignificant. Because the failure to show causation is dis-

positive, however, we need not reach these issues.

GONZALEZ v. ARIZONA 4155

B

We next consider Gonzalez and ITCA’s claim that Proposi-

tion 200’s polling place provision violates the Twenty-fourth

Amendment to the U.S. Constitution.36

The Twenty-fourth Amendment provides:

The right of citizens of the United States to vote in

any primary or other election for President or Vice

President, for electors for President or Vice Presi-

dent, or for Senator or Representative in Congress,

shall not be denied or abridged by the United States

or any State by reason of failure to pay any poll tax

or other tax.

U.S. Const. amend. XXIV, § 1. Gonzalez and ITCA do not

argue that requiring voters to show identification at the polls

is itself a poll tax. Rather, they argue that, because some vot-

ers do not possess the identification required under Proposi-

tion 200, those voters will be required to spend money to

obtain the requisite documentation, and that this payment is

indirectly equivalent to a tax on the right to vote.

[12] This analysis is incorrect. Although obtaining the

identification required under § 16-579 may have a cost, it is

neither a poll tax itself (that is, it is not a fee imposed on vot-

ers as a prerequisite for voting), nor is it a burden imposed on

voters who refuse to pay a poll tax. Cf. Harman, 380 U.S. at

541-42.

36

Although ITCA’s briefing collapses the Twenty-fourth and Fourteenth

Amendment poll tax claims into a single argument, these are different

claims that arise under different constitutional amendments. The Twenty-

fourth Amendment extends only to federal elections, see Harman v. For-

ssenius, 380 U.S. 528, 540 (1965), whereas the Fourteenth Amendment

can also invalidate restrictions on the right to vote in state elections, see

Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966). We will

therefore address these two claims separately.

4156 GONZALEZ v. ARIZONA

Our conclusion is consistent with Harman, the only

Supreme Court case considering the Twenty-fourth Amend-

ment’s ban on poll taxes. In that case, the Court considered

a state statute that required voters to either pay a $1.50 poll

tax on an annual basis or go through a “cumbersome proce-

dure,” id. at 541, for filing an annual certificate of residence,

id. at 530-32. There was no dispute that the $1.50 fee, if it

were a freestanding prerequisite for voting, would constitute

a poll tax barred by the Twenty-fourth Amendment. See id. at

540. Accordingly, the only question before the Court was

whether the state “may constitutionally confront the federal

voter with a requirement that he either pay the customary poll

taxes as required for state elections or file a certificate of resi-

dence.” Id. at 538. The Court enunciated the rule that a state

may not impose “a material requirement solely upon those

who refuse to surrender their constitutional right to vote in

federal elections without paying a poll tax.” Id. at 541. Apply-

ing this rule, the Court determined that the state’s certificate

of residence requirement was a material burden: among other

things, the procedure for filing the certificate was unclear, the

requirement that the certificate be filed six months before the

election “perpetuat[ed] one of the disenfranchising character-

istics of the poll tax which the Twenty-fourth Amendment

was designed to eliminate,” and the state had other alterna-

tives to establish that voters were residents, including “regis-

tration, use of the criminal sanction, purging of registration

lists, [and] challenges and oaths.” Id. at 541-43. Accordingly,

the Court concluded that it was “constrained to hold that the

requirement imposed upon the voter who refuses to pay the

poll tax constitutes an abridgment of his right to vote by rea-

son of failure to pay the poll tax.” Id. at 542.

[13] Proposition 200’s polling place provision is not a poll

tax under Harman. Requiring voters to show identification at

the polls does not constitute a tax.37 Nor does the identifica-

37

Voters who use an early ballot to vote do not even have to show iden-

tification. Ariz. Rev. Stat. § 16-550(A) (for early ballots, elector identity

is verified by signature comparison alone).

GONZALEZ v. ARIZONA 4157

tion requirement place a material burden on a voter “solely

because of his refusal to waive [his] constitutional immunity”

to a poll tax, id.; rather, under Proposition 200, all voters are

required to present identification at the polls. Because Arizo-

na’s system does not, as a matter of law, qualify as a poll tax,

we affirm the district court’s conclusion that Proposition

200’s polling place provision does not violate the Twenty-

fourth Amendment.

C

[14] Nor is Proposition 200’s polling place provision an

unconstitutional poll tax under the Fourteenth Amendment’s

Equal Protection Clause. Harper is the leading Supreme

Court case considering whether a state law is a poll tax under

the Fourteenth Amendment. In Harper, the Supreme Court

held that a state law levying an annual $1.50 poll tax on indi-

viduals exercising their right to vote was unconstitutional

under the Equal Protection Clause. 383 U.S. at 664-66 & n.1.

The Court held that “the interest of the State, when it comes

to voting, is limited to the power to fix qualifications,” and

that the imposition of poll taxes fell outside this power

because “[w]ealth, like race, creed, or color, is not germane

to one’s ability to participate intelligently in the electoral pro-

cess.” Id. at 668. Because the state’s poll tax made affluence

of the voter an electoral standard, and such a standard is irrel-

evant to permissible voter qualifications, the Court concluded

that the tax was invidiously discriminatory and a per se viola-

tion of the Equal Protection Clause. Id. at 666-67.

Proposition 200’s polling place provision falls outside of

Harper’s rule that “restrictions on the right to vote are invidi-

ous if they are unrelated to voter qualifications.” Crawford,

553 U.S. at 189 (Stevens, J., announcing the judgment of the

Court). Requiring voters to provide documents proving their

identity is not an invidious classification based on impermissi-

ble standards of wealth or affluence, even if some individuals

have to pay to obtain the documents. On the contrary, such a

4158 GONZALEZ v. ARIZONA

requirement falls squarely within the state’s power to fix core

voter qualifications. Nevertheless, ITCA argues that the

Court’s more recent decision in Crawford, 553 U.S. 181,

extended Harper’s holding that an electoral standard based on

voter affluence is invidiously discriminatory (and thus a per

se violation of the Equal Protection Clause) to encompass

indirect fees, such as the fees or costs necessary to obtain

identification documents.

ITCA’s argument is based on a misreading of Crawford.

Crawford involved an Indiana state requirement that a citizen

voting in person or at the office of the circuit court clerk

before election day present a photo identification card issued

by the government. Id. at 185. The state would provide a free

photo identification to “qualified voters able to establish their

residence and identity.” Id. at 186. A number of plaintiffs

challenged this requirement on the ground that the “new law

substantially burden[ed] the right to vote in violation of the

Fourteenth Amendment.” Id. at 187. Although the Court was

unable to agree on the rationale for upholding Indiana’s photo

identification requirement,38 neither the lead opinion nor the

concurrence held that Harper’s per se rule applied. See id. at

203-04. The lead opinion, upon which ITCA relies, explained

that Harper’s “litmus test” made “even rational restrictions on

the right to vote . . . invidious if they are unrelated to voter

qualifications.” Id. at 189-90. But according to the lead opin-

ion, later election cases had moved away from Harper to

apply a balancing test to state-imposed burdens on the voting

process. Id. Under these later cases, a court “must identify and

evaluate the interests put forward by the State as justifications

for the burden imposed by its rule, and then make the ‘hard

judgment’ that our adversary system demands.” Id. at 190.

The lead opinion then proceeded to apply this balancing test

38

The lead opinion authored by Justice Stevens was joined by Chief Jus-

tice Roberts and Justice Kennedy. Justice Scalia filed a concurring opinion

joined by Justices Thomas and Alito. Justices Ginsburg, Souter, and

Breyer dissented.

GONZALEZ v. ARIZONA 4159

to the Indiana photo identification requirement. Id. at

191-200. Because Crawford did not extend Harper’s per se

rule to other burdens imposed on voters, it does not support

ITCA’s argument that Proposition 200’s identification

requirement is per se invalid.

[15] Although ITCA’s reliance on Crawford is not entirely

clear, ITCA does not appear to argue that Proposition 200’s

polling place provision is invalid under Crawford’s balancing

test. Such an argument would be unavailing in any event. The

lead opinion in Crawford held that the burden imposed on cit-

izens who must obtain a photo identification document was

not sufficiently heavy to support a facial attack on the consti-

tutionality of the state law, in light of the state’s legitimate

interests in deterring and detecting voter fraud, modernizing

election procedures, and safeguarding voter confidence. Id. at

191, 202-03. The same reasoning is applicable here. While the

lead opinion noted that photo identification cards were pro-

vided for free by Indiana, it also recognized that to obtain

these free cards, prospective voters needed to “present at least

one ‘primary’ document, which can be a birth certificate, cer-

tificate of naturalization, U.S. veterans photo identification,

U.S. military photo identification, or a U.S. passport.” Id. at

198 n.17. Obtaining these primary documents, the Supreme

Court acknowledged, may require payment of a fee. Id.

Because Proposition 200’s polling place provision allows vot-

ers to present these same sorts of primary documents, Propo-

sition 200 is no more burdensome than the identification

requirement upheld in Crawford. Nor has ITCA suggested

any reason why Arizona’s interests in imposing a photo iden-

tification requirement would be less weighty than the state

interests at issue in Crawford. Therefore, even under the bal-

ancing test set forth in Crawford’s lead opinion, we would

uphold Proposition 200’s polling place identification require-

ment against a facial challenge.

In sum, because any payment associated with obtaining the

documents required under Proposition 200’s polling place

4160 GONZALEZ v. ARIZONA

provision is related to the state’s legitimate interest in assess-

ing the eligibility and qualifications of voters, the photo iden-

tification requirement is not an invidious restriction under

Harper, and the burden is minimal under Crawford. As such,

the polling place provision does not violate the Fourteenth

Amendment’s Equal Protection Clause.

IV

Our system of dual sovereignty, which gives the state and

federal governments the authority to operate within their sepa-

rate spheres, “is one of the Constitution’s structural protec-

tions of liberty.” Printz v. United States, 521 U.S. 898, 921

(1997). “Just as the separation and independence of the coor-

dinate branches of the Federal Government serve to prevent

the accumulation of excessive power in any one branch, a

healthy balance of power between the States and the Federal

Government will reduce the risk of tyranny and abuse from

either front.” Id. (internal quotation marks omitted). Despite

our respect for the state’s exercise of its sovereign authority,

however, the Constitution’s text requires us to safeguard the

specific enumerated powers that are bestowed on the federal

government. The authority granted to Congress under the

Elections Clause to “make or alter” state law regulating pro-

cedures for federal elections is one such power. The Framers

of the Constitution were clear that the states’ authority to reg-

ulate federal elections extends only so far as Congress

declines to intervene. See U.S. Const. art. 1, § 4, cl. 1; Foster,

522 U.S. at 69. Given the paramount authority delegated to

Congress by the Elections Clause, we conclude that the

NVRA supersedes Proposition 200’s conflicting registration

requirement for federal elections, Ariz. Rev. Stat. § 16-

166(F). We uphold Proposition 200’s polling place provision

with respect to all other claims.39

AFFIRMED in part and REVERSED in part.

39

Each party shall bear its own costs on appeal.

GONZALEZ v. ARIZONA 4161

APPENDIX A

(NOTE: APPENDIX A and APPENDIX B,

slip op. pages 4161-4191, is posted separately)

4192 GONZALEZ v. ARIZONA

Chief Judge KOZINSKI, concurring:

I find this a difficult and perplexing case. The statutory lan-

guage we must apply is readily susceptible to the interpreta-

tion of the majority, but also that of the dissent. For a state to

“accept and use” the federal form could mean that it must

employ the form as a complete registration package, to the

exclusion of other materials. This would construe the phrase

“accept and use” narrowly or exclusively. But if we were to

give the phrase a broad or inclusive construction, states could

“accept and use” the federal form while also requiring regis-

trants to provide documentation confirming what’s in the

form. This wouldn’t render the federal form superfluous, just

as redundant braking systems on cars and secondary power

supplies on computers aren’t superfluous. This is known col-

loquially as wearing a belt and suspenders, and is widely used

to safeguard against failure of critical systems (i.e., getting

caught with your pants down). See Redundancy (engineering),

Wikipedia, http://goo.gl/ce8il (last visited Jan. 9, 2012).

The two constructions embody different, and somewhat

antithetical, policies. The narrow construction maximizes fed-

eral control and national uniformity at the expense of state

autonomy and local control. The broad construction defers to

state and local interests while sacrificing national uniformity.

As a linguistic matter, neither construction of “accept and

use” strikes me as superior.

If Congress had made it clear that states must accept the

federal form as a complete application, or that they need not,

I would cheerfully enforce either command. But Congress

used tantalizingly vague language, which would make it very

useful to fall back on a rule of construction, such as the Clear

Statement Rule or the Presumption Against Preemption.

Judge Ikuta is right, however, that the Supreme Court has so

far adopted such rules only for Supremacy Clause cases, not

for those arising under the Elections Clause. See maj. op. at

4127-29.

GONZALEZ v. ARIZONA 4193

There would, I believe, be ample justification for adopting

such rules for Elections Clause preemption. While the federal

government has an interest in how elections for federal office

are conducted, the states are not disinterested bystanders. Fed-

eral elections determine who will represent the state and its

citizens in Congress, the White House and, indirectly, the fed-

eral courts. Making sure that those representatives are chosen

by the state’s qualified electors is of vital significance to the

state and its people. Moreover, the federal government is

commandeering the state’s resources, giving states a signifi-

cant stake in ensuring that the process is conducted efficiently

and fairly. Rightly or wrongly, many still blame (or credit)

voting irregularities in Illinois for John F. Kennedy’s election

as President in 1960, and in Texas for Lyndon Johnson’s elec-

tion to the Senate in 1948. States have an interest in ensuring

that their reputations aren’t soiled in this fashion for decades,

maybe longer. The risk of fraud and other malfeasance may

depend on local conditions and thus differ from state to state.

States with a tradition of electoral chicanery, or with large

transient populations, may need to impose stricter controls to

ensure the integrity of their voting processes.

The fact remains that the Supreme Court has never articu-

lated any doctrine giving deference to the states under the

Elections Clause. This may be because it hasn’t had occasion

to do so in modern times. Foster v. Love, 522 U.S. 67 (1997),

was an easy case where the state’s election scheme directly

contradicted the constitutional text, while the state’s interest

in avoiding a general election on the same day as the rest of

the country was slight. A case such as ours, where the statu-

tory language is unclear and the state has a compelling inter-

est in avoiding fraudulent voting by large numbers of

unqualified electors, presents a far more suitable case for

deciding whether we should defer to state interests. But only

the Supreme Court can adopt such a doctrine.

In the absence of something better, I must resort to second-

ary aids to construction. In this case, we have legislative his-

4194 GONZALEZ v. ARIZONA

tory that supports reading “accept and use” in the exclusive

sense, which would preclude states from seeking additional

documentation. Senator Simpson proposed amending the bill

that eventually became the NVRA to provide that “[n]othing

in this Act shall be construed to preclude a State from requir-

ing presentation of documentary evidence of the citizenship of

an applicant for voter registration.” 139 Cong. Rec. 5098

(Mar. 16, 1993). He explained his purpose: “It allows States

to check documents to verify citizenship. . . . [I]t simply

makes clear that this bill must not be interpreted to stop any

particular State from requiring documents. This includes

States which currently by State law check documents, as well

as those who may wish to check documents in the future.

. . . I offer my amendment to try to ensure that States will con-

tinue to have the right, if they wish, to require documents ver-

ifying citizenship . . . .” Id. at 5098-99. Senator Simpson

understood that “accept and use” could be read narrowly to

preclude states from seeking documentation beyond the fed-

eral form, and offered his amendment to ensure that the

phrase would be construed in the broad, inclusive sense.

Senator Ford, the NVRA’s sponsor, responded: “[T]here is

nothing in the bill now that would preclude the State’s requir-

ing presentation of documentary evidence of citizenship. I

think basically this is redundant, even though you probably

put it in a section. But there is nothing in there now that

would preclude it.” Id. at 5099. Senator Ford seemed to

believe that “accept and use” was already being used in the

inclusive sense, and was amenable to adding language that

would confirm this.

The Senate adopted the Simpson amendment, but the

House bill lacked a similar provision. The Conference Com-

mittee adopted the House version, explaining that “[t]he con-

ferees agree with the House bill and do not include this

provision from the Senate amendment. It is not necessary or

consistent with the purposes of this Act. Furthermore, there is

concern that it could be interpreted by States to permit regis-

GONZALEZ v. ARIZONA 4195

tration requirements that could effectively eliminate, or seri-

ously interfere with, the mail registration program of the Act.

It could also adversely affect the administration of the other

registration programs as well. . . . These concerns lead the

conferees to conclude that this section should be deleted.”

H.R. Rep. No. 103-66, at 23-24 (1993), reprinted in 1993

U.S.C.C.A.N. 140, 148-49 (Conf. Rep.). The conferees thus

rejected the Simpson amendment, not because they thought it

superfluous (as did Senator Ford) but because the inclusive

meaning of “accept and use” was inconsistent with their

vision of how the Act should operate.

After the conference, the Senate re-passed the NVRA with-

out the Simpson amendment. S. Rep. No. 103-6, at 12-13

(1993). A minority of senators opposed the bill in part

because they thought “requiring proof of citizenship” would

be helpful in combating fraud and worried that the bill “would

preclude such corrective action.” Id. at 50.

In the House, some members sought to recommit the bill in

order to tack on a Simpson-like amendment. They argued that

failure to do so would encourage voter fraud. See 139 Cong.

Rec. at 9228 (May 5, 1993) (Rep. Livingson: “Without this

provision, this bill is an auto-fraudo bill.”); id. at 9229 (Rep.

Cox: “Despite its benign name, this pernicious bill would

make it nearly impossible to prevent ineligible people—

including illegal aliens—from voting.”). Their arguments fell

on deaf ears. Id. at 9231.

The Supreme Court has warned us time and again not to

rely on legislative history in interpreting statutes, largely

because of the ease with which floor statements and commit-

tee reports can be manipulated to create a false impression as

to what the body as a whole meant. But the history here con-

sists of actions taken by legislative bodies, not just words

penned by staffers or lobbyists. The Court has recognized that

such drafting history can offer interpretive insight: “Con-

gress’ rejection of the very language that would have

4196 GONZALEZ v. ARIZONA

achieved the result the Government urges here weighs heavily

against the Government’s interpretation.” Hamdan v. Rums-

feld, 548 U.S. 557, 579-80 (2006). While the dissenting Jus-

tices in Hamdan objected to the use of legislative history,

their objection rested in large part on the fact that it was being

used to defeat clear statutory language. See id. at 665-68

(Scalia, J., dissenting, joined by Thomas and Alito, JJ.). I’m

not convinced they would object with equal vigor where, as

here, the statutory language is in equipoise and both chambers

affirmatively rejected efforts to authorize precisely what Ari-

zona is seeking to do.

The dissent mistakenly sees some inconsistency between

my conclusion today and that in my “well-drafted dissent to

the original panel opinion.” Dissent at 4211 n.1. But, as a

member of a three-judge panel, I had no occasion to construe

the statute de novo because we were bound by the law of the

circuit and the law of the case. Gonzalez v. Arizona, 624 F.3d

1162, 1198-99 (9th Cir. 2010) (Kozinski, C.J., dissenting in

large part). To the extent I could reach the issue at all, it was

only to determine whether “Gonzalez I is clearly wrong.” Id.

at 1208. Because I concluded then, as I do now, that “both

preemptive and non-preemptive constructions of ‘accept’ and

‘use’ are plausible,” I deferred to the earlier panel’s construc-

tion. Id. at 1206. As an en banc court, we cannot defer to

Gonzalez I. Rather, we must come up with what we think is

the best construction of the statute. For the reasons outlined

above, and those in Judge Ikuta’s very fine and thorough

opinion, I believe the preemptive reading of the statute is

somewhat better than the alternative.

BERZON, Circuit Judge, concurring, with whom MURGUIA,

Circuit Judge, joins:

I fully concur in the majority opinion but note the follow-

ing: With respect to whether Proposition 200’s polling place

GONZALEZ v. ARIZONA 4197

provision “results in a denial or abridgement of the right of

any citizen of the United States to vote on account of race or

color” in violation of § 2(a) of the VRA, 42 U.S.C. § 1973(a),

the court holds only that the current record is insufficient to

show a “causal connection between the challenged voting

practice and [a] prohibited discriminatory result,” Smith v.

Salt River Project Agric. Improvement & Power Dist., 109

F.3d 586, 595 (9th Cir. 1997) (alteration in original) (internal

quotation marks omitted). I concur in Section III.A of the

majority opinion with that understanding of its limited reach.

A different record in a future case could produce a different

outcome with regard to the § 2 causation question.

PREGERSON, Circuit Judge, concurring in part and dissent-

ing in part:

I agree with the majority that Proposition 200’s registration

provision violates the National Voter Registration Act

(“NVRA”). See Maj. Op. at 4148. I part ways with the major-

ity, however, when it comes to Proposition 200’s requirement

that voters provide identification at the polls (“the polling

place provision”). The majority concludes that Gonzalez’s

challenge to the polling place provision under Section 2 of the

Voting Rights Act fails because Gonzalez has not established

that the polling place provision “results in discrimination on

account of race.” Maj. Op. at 4151. I respectfully disagree

with the majority, for two reasons.

First, in concluding that Proposition 200’s polling place

provision does not disparately impact Latino voters, the

majority conflates statistics on Proposition 200’s registration

provision with Proposition 200’s polling place provision. See

Maj. Op. at 4152-53. A thorough review of the record reveals

that Proposition 200’s polling place provision has a signifi-

cant disproportionate impact on Latino voters. In the 2006

general election, Latino voters comprised between 2.6% and

4198 GONZALEZ v. ARIZONA

4.2% of the voters who turned out to vote, but Latino voters

cast 10.3% of the ballots that went uncounted because of

insufficient identification. Latino voters were over-

represented by 200% to 500% in ballots that were uncounted

because of insufficient identification.

Second, the majority mistakenly gives short shrift to the

“Senate Factors” from Thornburg v. Gingles, 478 U.S. 30, 44

(1986).1 In discussing these factors, the majority acknowl-

edges that Latino voters have “suffered a history of discrimi-

nation in Arizona that hindered their ability to participate in

the political process fully, that there were socioeconomic dis-

parities between Latinos and whites in Arizona, and that Ari-

zona continues to have some degree of racially polarized

voting.” Maj. Op. at 4152. Despite acknowledging these facts,

the majority concludes that Proposition 200’s polling place

provision does not result “in discrimination on account of

race.” Maj. Op. at 4151. But a proper Section 2 analysis

requires that we “consider how the challenged practice ‘inter-

1

In Gingles the Supreme Court held that a court should consider the fol-

lowing factors, commonly referred to as the “Senate Factors,” in determin-

ing whether a plaintiff has established a violation of Section 2 of the

Voting Rights Act:

[T]he history of voting-related discrimination in the State or

political subdivision; the extent to which voting in the elections

of the State or political subdivision is racially polarized; the

extent to which the State or political subdivision has used voting

practices or procedures that tend to enhance the opportunity for

discrimination against the minority group, such as unusually

large election districts, majority vote requirements, and prohibi-

tions against bullet voting; the exclusion of members of the

minority group from candidate slating processes; the extent to

which minority group members bear the effects of past discrimi-

nation in areas such as education, employment, and health, which

hinder their ability to participate effectively in the political pro-

cess; the use of overt or subtle racial appeals in political cam-

paigns; and the extent to which members of the minority group

have been elected to public office in the jurisdiction.

Gingles, 478 U.S. at 44-45.

GONZALEZ v. ARIZONA 4199

acts with social and historical conditions’ ” to cause an

inequality in the opportunities of Latino voters to cast their

ballots. Farrakhan v. Washington, 338 F.3d 1009, 1016 (9th

Cir. 2003) (quoting Gingles, 478 U.S. at 47).

Indeed, as the district court recounted in much detail, de

jure discrimination against Latinos in Arizona existed during

most of the twentieth century. Just prior to 1910, Arizona vot-

ers passed a literacy law that explicitly targeted Mexicans and

disqualified non-English speakers from voting in state elec-

tions. As late as the 1960s, these literacy requirements were

a precondition for voting in Arizona.

After Arizona attained statehood in 1912, the new state

government engaged in an anti-immigrant campaign charac-

terized by a series of proposals aimed at restricting the politi-

cal rights of Mexican immigrants’ and limiting their right to

work. The new Arizona constitution restricted non-citizens

from working on public projects. In 1914, the Arizona legisla-

ture enacted the “eighty percent law,” which stated that eighty

percent of the employees in businesses that had five or more

employees had to be “native-born citizens of the United

States.”

Segregation of Latinos in housing and public accommoda-

tions was also common in Arizona during most of the twenti-

eth century. In the years immediately following World War II,

the city of Phoenix segregated Latino veterans in separate

housing units. Movie theaters, restaurants, and stores fre-

quently excluded Latinos or required Latinos to sit in segre-

gated areas. Public parks and swimming pools were also

segregated. A particularly notorious example of this segrega-

tion occurred in Tempe, where Latinos were only permitted

to use the public swimming pool the day before the pool was

drained.

In my view, statistics showing that Proposition 200’s poll-

ing place provision disparately impact Latino voters, when

4200 GONZALEZ v. ARIZONA

coupled with Arizona’s long history of discrimination against

Latinos, current socioeconomic disparities between Latinos

and whites in Arizona, and racially polarized voting in Ari-

zona, establish that Proposition 200’s polling place provision

results in discrimination on account of race.

History has also shown that when a Latino voter

approaches the polling place but is stopped by a person per-

ceived to be an authority figure checking for identification,

there’s something intimidating about that experience that

evokes fear of discrimination. This intimidation has the effect

of keeping Latino voters away from the polls.

In sum, I would hold that Proposition 200’s polling place

provision results in discrimination on account of race, in vio-

lation of Section 2 of the Voting Rights Act.

RAWLINSON, Circuit Judge, joined by Judge N.R. Smith,

concurring in part and dissenting in part:

I concur in the majority’s conclusion that Arizona’s Propo-

sition 200, which amended Ariz. Rev. Stat. § 16-579 to

require proof of identification prior to receiving a ballot, does

not violate the Voting Rights Act or the Equal Protection

Clause of the Fourteenth Amendment. I also agree that the

statutory amendment did not constitute a poll tax as pro-

scribed in the Twenty-fourth Amendment to the United States

Constitution. As a result, I join Part III of the majority opin-

ion.

I respectfully dissent from the balance of the majority opin-

ion, because I am not persuaded that application of Proposi-

tion 200’s proof-of-citizenship provision to prospective voters

using the National Mail Voter Registration Form (the Federal

Form) is precluded by the National Voting Rights Act

(NVRA). In my view, there is no conflict between the NVRA

GONZALEZ v. ARIZONA 4201

and Arizona’s proof-of-citizenship requirement. In fact, the

plain text of the NVRA validates Arizona’s proof-of-

citizenship requirement, even while recognizing that Arizona

must “accept and use” the Federal Form.

The text of the NVRA allows for Arizona’s proof-of-

citizenship requirement, notwithstanding whether a presump-

tion against preemption generally exists under the Election

Clause, as it does under the Supremacy Clause. The NVRA

states the following:

In addition to accepting and using the [Federal

Form], a State may develop and use a mail voter reg-

istration form that meets all of the criteria stated in

section 1973gg-7(b) of this title for the registration

of voters in elections for Federal office.

42 U.S.C. § 1973gg-4(a)(2). Therefore, the plain text of the

NVRA authorizes a state to “develop and use a mail voter

registration form . . . for the registration of voters in elections

for Federal office,” in addition to the Federal Form if it

“meets all of the criteria stated in section 1973gg-7(b).” As

part of such criteria, the NVRA provides that a mail voter reg-

istration form “may require only such identifying information

. . . as is necessary to enable the appropriate State election

official to assess the eligibility of the applicant . . .” 42 U.S.C.

§ 1973gg-7(b)(1) (emphasis added). Section 1973gg-7(b)(2)

then specifies that citizenship is a necessary eligibility

requirement. Thus, the NVRA expressly allows Arizona to

require proof of eligibility, such as proof of citizenship,

because “it is identifying information . . . necessary to enable

the . . . State election official to assess eligibility,” and Ari-

zona accepts and uses the Federal Form. See 42 U.S.C.

§ 1973gg-7(b)(1).

I emphasize the point that the NVRA itself expressly, not

merely implicitly, authorizes a state to “develop and use” its

own form “for the registration of voters in elections for Fed-

4202 GONZALEZ v. ARIZONA

eral office,” in addition to accepting and using the [Federal

Form].” 42 U.S.C. § 1973gg-4(a)(2). Because a state must

accept and use the Federal Form but is also expressly autho-

rized to develop and use its own form that meets the criteria

in § 1973gg-7(b), the plain text creates a minimum standard

through the Federal Form and allows a state to require more

as long as it is within the bounds of § 1973gg-7(b). See Hui

v. Castaneda, 130 S. Ct. 1845, 1855 (2010) (“We are

required, however, to read the statute according to its text.

. . .”); Arkansas v. Farm Credit Servs. of Cent. Ark., 520 U.S.

821, 827 (1997) (noting that it is a “basic principle that statu-

tory language is to be enforced according to its terms”). While

state forms must comply with the same general standards as

the Federal Form, there is no mandate that states must use

only the information included in the Federal Form or that the

Federal Form is a complete application. See 42 U.S.C.

§ 1973gg-4(a)(2). States have the same discretion to decide

the contents of the form they develop and use, when drafted

in accordance with § 1973gg-7(b), as the Election Assistance

Commission (EAC) had for the Federal Form’s requirements.

See 42 U.S.C. §§ 1973gg-4(a)(2), 1973gg-7(b). Thus, the stat-

ute expressly authorizes a state, as long as it complies with the

standards set forth in § 1973gg-7(b), to require additional

information outside of the Federal Form for voter registration.

I do not know how to more clearly and emphatically stress the

point that the plain text of the statute allows Arizona to

require proof-of-citizenship in elections for federal office.

The majority argues that the NVRA preempts the proof-of-

citizenship requirement, because the NVRA requires states to

“accept and use” the Federal Form and Proposition 200’s

requirement to “ ‘reject any application for registration that is

not accompanied by satisfactory evidence of United States cit-

izenship’ . . . do not operate harmoniously. . . .” Majority

Opinion, p. 4138-39 (citing Ariz. Rev. Stat. § 16-166(F)). The

majority rejects Arizona’s argument that the statutes are har-

monious, because Arizona is accepting and using the Federal

Form for voter registration as long as evidence of citizenship

GONZALEZ v. ARIZONA 4203

is provided pursuant to the state form requirement. See id. at

4139-40. The majority reasons that rejecting voter registration

based on anything outside the Federal Form is inappropriate

because it “is contrary to the form’s intended use and pur-

pose.” Id. at 4140. Further, the majority opines that its reading

is consistent with the “natural reading of the NVRA.” Id. I

disagree.

The terms of the statute trump the intended use and purpose

of the Federal Form. See Lockart v. United States, 546 U.S.

142, 146 (2005) (“The fact that Congress may not have fore-

seen all of the consequences of a statutory enactment is not

a sufficient reason for refusing to give effect to its plain

meaning.”) (citation omitted); see also Siripongs v. Davis,

282 F.3d 755, 758 (9th Cir. 2002) (“In interpreting the statute

we look to general principles of statutory construction and

begin with the language of the statute itself.” If the “language

is clear on its face, the sole function of the court is to enforce

it according to its terms. . . .”) (citation, alteration and internal

quotation marks omitted). Further, the “accept and use” provi-

sions of the NVRA do not establish a conflict between Propo-

sition 200 and the NVRA where one is not otherwise present

in the text of the statutes. Reading the requirement to “accept

and use” the Federal Form in § 1973gg-4(a)(1) along with

§ 1973gg-4(a)(2) does not naturally lead to the conclusion

that no requirement outside the Federal Form may disallow a

voter’s registration. The relevance and importance of

§ 1973gg-4(a)(2) is paramount. Invalidating the registration

provision ignores § 1973gg-4(a)(2), which qualifies the extent

to which a state must depend on the Federal Form for federal

voter registration—i.e., the Federal Form is not the exclusive

form.

The majority seems to read § 1973gg-4(a)(2) in such a way

as to acknowledge a state’s right to develop and use its own

form (if compliant with § 1973gg-7(b)), but that a state form

cannot require anything more than the Federal Form or cause

a voter to be ineligible to register to vote in federal elections.

4204 GONZALEZ v. ARIZONA

However, a more logical and appropriate reading is that the

Federal Form acts as the default—setting minimum

requirements—, and a state may require additional require-

ments for federal elections through its own form if the

requirements comply with the criteria of the statute (essen-

tially setting the maximum available requirements that may be

used in the state form). See La. Pub. Serv. Comm’n v. F.C.C.,

476 U.S. 355, 370 (1986) (“[W]here possible, provisions of a

statute should be read so as not to create a conflict. . . .”).

Therefore, there is flexibility while providing for control

through the standards in § 1973gg-7(b). The Federal Form

acts as a baseline while the criteria in § 1973gg-7(b) act as

outer limits.

The requirement to “accept and use” the Federal Form does

not preclude states from imposing additional requirements.

First, accepting and using something does not mean that it is

necessarily sufficient. For example, merchants may accept

and use credit cards, but a customer’s production of a credit

card in and of itself may not be sufficient. The customer must

sign and may have to provide photo identification to verify

that the customer is eligible to use the credit card. Second, the

ordinary and natural meaning of the word “use” is “to

employ” or “derive service from . . .”. Smith v. United States,

508 U.S. 223, 228-29 (1993) (citation omitted). The word

“accepts” means “to adopt, to agree to carry out provisions,

to keep and retain.” Worden v. SunTrust Banks, Inc., 549 F.3d

334, 344 (4th Cir. 2008) (citing Black’s Law Dictionary 12

(5th ed.1979)). It is undisputed that Arizona has employed

and derived service from the Federal Form and adopted its use

for the registration of voters in federal elections. The only real

issue is whether Proposition 200’s requirement of proof of cit-

izenship so conflicts with the use of the Federal Form that the

requirement of proof of citizenship should be voided.

I realize that the majority’s argument that “rejecting” nec-

essarily counters “accepting” has some superficial appeal. See

Majority Opinion, p. 4139. However, what is being argued is

GONZALEZ v. ARIZONA 4205

whether states must accept and use the Federal Form in their

federal election procedures as a whole, or whether they must

accept the Federal Form as completely sufficient and the sole

requirement for voter registration. Thus, the point of conten-

tion is whether Arizona defies the demand to accept and use

the Federal Form by not finding voter registration wholly suf-

ficient based solely on the Federal Form. The answer cannot

be that the Federal Form is the end-all-be-all. Section 1973gg-

4(a)(2) clarifies that “accept and use” cannot mean that a state

must allow a voter to register solely on the basis of the Fed-

eral Form, because it specifically allows a state to develop

and use a state form, in addition to the Federal Form, for fed-

eral elections. It is beyond my understanding how the Federal

Form can be considered “the end” when the NVRA explicitly

allows states to develop and use a form “[i]n addition to

accepting and using the [Federal Form].” 42 U.S.C. § 1973gg-

4(a)(2) (emphasis added).

No provision of the NVRA expressly forbids states from

requiring additional identifying documents to verify a voter’s

eligibility. The NVRA only expressly prohibits states from

requiring “notarization or other formal authentication.” 42

U.S.C. § 1973gg-7(b)(3). “We . . . read the enumeration of

one case to exclude another [if] it is fair to suppose that Con-

gress considered the unnamed possibility and meant to say no

to it. . . .” Barnhart v. Peabody Coal Co., 537 U.S. 149, 168

(2003) (citation omitted). Here, Congress prohibited requiring

notarization or other formal authentication but failed to pro-

hibit proof-of-citizenship, while expressly recognizing its

importance in voter registration. See 42 U.S.C. § 1973gg-7(b);

see also Kucana v. Holder, 130 S. Ct 827, 838 (2010)

(“Where Congress includes particular language in one section

of a statute but omits it in another section of the same Act, it

is generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion.” (alteration

and citation omitted)). Nor does the NVRA state that it is the

exclusive authority on eligibility verification or that “Arizo-

na’s only role was to make [the Federal] [F]orm available to

4206 GONZALEZ v. ARIZONA

applicants and to ‘accept and use’ it for the registration of vot-

ers.“ Majority Opinion, p. 4143 (emphasis added). The lan-

guage of the statute not only does not prohibit additional

documentation requirements, it permits states to “require . . .

such identifying information . . . as is necessary to enable the

appropriate State election official to assess the eligibility of

the applicant . . .” 42 U.S.C. § 1973gg-7(b)(1).

If, as the majority believes, the requirement to accept and

use the Federal Form and the express allowance for a state to

develop and use a form that complies with the set criteria of

the statute are contradictory, see Majority Opinion, pp.

4139-43, then the court “must interpret the statute to give

effect to both provisions where possible.” See Ricci v. DeSte-

fano, 129 S. Ct. 2658, 2674 (2009) (citation omitted). Here,

it is possible and necessary to interpret the statute as requiring

states to accept and use the Federal Form, while allowing

states to demand adherence to their form and specific require-

ments for federal voter registration if in compliance with

§ 1973gg-7(b).

Reading the statute as a whole solidifies my conclusion that

Arizona’s registration provision is valid. See Samantar v.

Yousuf, 130 S. Ct. 2278, 2289 (2010) (“We do not . . . con-

strue statutory phrases in isolation; we read statutes as a

whole.” (citation and alteration omitted)); see also, K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In ascer-

taining the plain meaning of the statute, the court must look

to the particular statutory language at issue, as well as the lan-

guage and design of the statute as a whole. . . .”) (citation

omitted). Besides the express authorization for a state to “de-

velop and use” a form compliant with the statute’s criteria, 42

U.S.C. § 1973gg-4(a)(2), the NVRA also provides that “each

State shall establish procedures to register to vote in elections

for Federal office . . . (2) by mail application pursuant to sec-

tion 1973gg-4 of this title, . . . in addition to any other method

of voter registration provided for under State law,” id.

§ 1973gg-2(a) (emphasis added). Although the NVRA

GONZALEZ v. ARIZONA 4207

requires that states “accept and use” the Federal Form, id.

§ 1973gg-4(a)(2), the NVRA does not foreclose states from

using other methods for registering voters, id. § 1973gg-2(a),

and allows states to develop and use state specific forms, if

those forms fit within set criteria, id. § 1973gg-4(a)(2). There-

fore, Congress did not “assume exclusive control of the whole

subject . . . .” Ex Parte Siebold, 100 U.S. 371, 383 (1879)

(emphasis in the original). Arizona is allowed to require proof

of citizenship for federal voter registration because of its

expressly granted authority to develop and use a form com-

plying with § 1973gg-7(b) and may deny voter registration for

federal office for lack of such proof. See id. at 392 (“[W]e

think it clear that the clause of the Constitution relating to the

regulation of such elections contemplates such co-operation

whenever Congress deems it expedient to interfere merely to

alter or add to existing regulations of the State . . . .”).

The majority notes that, if Arizona is correct that

§§ 1973gg-4(a)(2) and 1973gg-7(b) allow the registration pro-

vision, “this would mean only that the NVRA allows Arizona

to include a proof of citizenship requirement on its State

Form.” Majority Opinion, p. 4143 (citation omitted). “It

would not mean that Arizona has authority to add this require-

ment to the Federal Form . . .” Id. However, this conclusion

ignores the specific language of § 1973gg-4(a)(2). That lan-

guage allows states to develop and use a state form complying

with the statute’s criteria for federal elections.

The majority also asserts that, even if the NVRA allows a

state form to include additional conditions within the parame-

ters of § 1973gg-7(b) (like proof-of-citizenship), a state may

not decline an applicant’s voter registration for federal elec-

tions because of the applicant’s failure to satisfy the addi-

tional conditions. See Majority Opinion, pp. 4140-41.

According to the majority,

[t]he NVRA’s State Form provision, § 1973gg-

4(a)(2), merely gives a state more options [and] Con-

4208 GONZALEZ v. ARIZONA

gress could have required all states to use only the

Federal Form . . . Instead, Congress allowed States

to use their state registration forms to register appli-

cants for both state and federal elections (provided

the state form complies with § 1973gg-7(b)). But

states cannot reject applicants who register for fed-

eral elections who use the Federal Form. . . . Major-

ity Opinion, pp. 4140-41 (emphasis by the majority).

Again, the majority’s attempt to rebut Arizona’s arguments

and this dissent contradicts the language of the NVRA and

leads to an absurd result. Under the majority’s argument, the

state form (and the additional conditions allowed in the state

form) have no real effect, because the applicant must only

meet the Federal Form requirements in order to register for

federal elections. Thus, Arizona must allow an applicant, sat-

isfying all but the proof-of-citizenship requirement, to be reg-

istered to vote in federal elections, while not allowing the

applicant to be registered for state elections. This faulty inter-

pretation contradicts the NVRA’s plain language that “a State

may develop and use a mail voter registration form that meets

all of the criteria stated in section 1973gg-7(b) of this title for

the registration of voters in elections for Federal office.” 42

U.S.C. § 1973gg-4(a)(2) (emphasis added). Put differently,

under the majority’s view, a state “registration form that

meets all the criteria stated in section 1973gg-7(b)” but that

includes an additional condition beyond the Federal Form

requirements may not be used to register “voters in elections

for Federal office,” although the state form is specifically

allowed by the language in § 1973gg-4(a)(2).

In addition, the majority believes that my interpretation of

§ 1973gg-4(a)(2) substitutes “instead of” for “[i]n addition

to.” Majority Opinion, p. 4141. However, my interpretation is

loyal to the wording “[i]n addition to,” because the Federal

Form requirements must be met. State form requirements,

constrained by § 1973-gg-7(b), are added to the Federal Form

requirements. In contrast, the majority’s view of § 1973gg-

GONZALEZ v. ARIZONA 4209

4(a)(2) basically strikes the statute’s text allowing state forms

to be used “[i]n addition to” the Federal Form “for the regis-

tration of voters in elections for Federal office.”

The majority’s view makes voter registration burdensome

for states. For example, an Arizona applicant meeting the

Federal Form requirements, but lacking proof-of-citizenship,

would have to be allowed to vote for federal officials but

could not vote for state officials. States that desire a proof-of-

citizenship requirement in their state forms (as the majority

suggests is allowed by the NVRA), would be forced to track

whether their residents are registered to vote for federal elec-

tions, state elections, or both. In essence, the majority’s alter-

ation of the statute imposes an unnecessary burden on the

states. Although “it is not our task to assess the consequences

of each approach and adopt one that produces the least mis-

chief[,]” Lewis v. City of Chi., Ill., 130 S. Ct. 2191, 2200

(2010), the majority’s view, ignoring the plain meaning of the

NVRA, cannot be what Congress intended. This is especially

true when one considers that the statutory allowance for a

state form does not displace the importance of the Federal

Form or the delegated authority to the EAC to determine the

contents of the Federal Form. The Federal Form maintains its

importance, because its use is required in all states. The Fed-

eral Form, therefore, establishes a minimum set of require-

ments. The EAC’s rejection of Arizona’s request to include a

proof-of-citizenship requirement demonstrates that the EAC

served its purpose of establishing a minimum (not a maxi-

mum) set of requirements for all states. Then, states individu-

ally are allowed to impose additional requirements within the

strict bounds of § 1973gg-7(b).

The majority believes that the proof-of-citizenship require-

ment disrupts the goal of the NVRA—to streamline the regis-

tration process. See Majority Opinion, pp. 4142-44. Although

the NVRA seeks to simplify and harmonize registration pro-

cedures, the statute also identifies “protect[ing] the integrity

of the electoral process” and “enhanc[ing] the participation of

4210 GONZALEZ v. ARIZONA

eligible citizens as voters in elections for Federal office” as

guiding purposes of the statute. 42 U.S.C. § 1973gg(b)

(emphasis added). Even under the majority’s complementary

analysis conducted pursuant to Seibold and Foster v. Love,

522 U.S. 67 (1997), see Majority Opinion, p. 4131, Arizona’s

proof-of-citizenship procedure complements—rather than

conflicts with—these important purposes. See Siebold, 100

U.S. at 384; Foster, 522 U.S. at 74 (holding that a state elec-

tion law is preempted only “to [the] extent [that] it conflicts

with federal law”). The stated harmonious purposes are not

served if ineligible voters are allowed to register.

Finally, even though allowing states to “develop and use”

their own forms (if compliant with § 1973gg-7(b)) may

decrease the efficiency of a Federal Form, this policy consid-

eration cannot overrule the express terms of the statute.

DePierre v. United States, 131 S. Ct. 2225, 2233 (2011)

(“That we may rue inartful legislative drafting, however, does

not excuse us from the responsibility of construing a statute

as faithfully as possible to its actual text. . . .”) (footnote refer-

ence omitted); Lewis, 130 S. Ct. at 2200 (“Truth to tell, how-

ever, both readings of the statute produce puzzling results.

. . . In all events, it is not our task to assess the consequences

of each approach and adopt the one that produces the least

mischief. Our charge is to give effect to the law Congress

enacted. . . .”); cf. United States v. Kennedy, 643 F.3d 1251,

1266 (9th Cir. 2011) (Ikuta, J.) (determining that a statute

compensating victims of child pornography was “a poor fit

for these types of offenses[,]” but acknowledging that “the

responsibility lies with Congress, not the courts, to develop a

scheme to ensure that defendants . . . are held liable . . .”).

In sum, the majority’s holding hinges on § 1973gg-

4(a)(1)’s requirement that states “accept and use” the Federal

Form. However, § 1973gg-4(a)(2) also allows a state to “de-

velop and use” its own form if it complies with the broad

standards in § 1973gg-7(b). Therefore, I am unable to see how

Arizona’s registration provision squarely conflicts with the

GONZALEZ v. ARIZONA 4211

NVRA or how the NVRA “assume[s] exclusive control of the

whole subject. . . .” Siebold, 100 U.S. at 383 (emphasis in the

original).1

1

Chief Judge Kozinski describes the NVRA as “readily susceptible to

the interpretation of the majority, but also that of the dissent. . . .” Concur-

ring Opinion, p. 4192. His well-drafted dissent to the original panel opin-

ion said it better. See Gonzalez v. Arizona (Gonzalez II), 624 F.3d 1162,

1206 (9th Cir. 2010) (Kozinski, J., dissenting) (“The NVRA doesn’t say

that states must treat the federal form as a complete application. . . .

There’s no question that Arizona accepts and uses the federal form for the

information contained in it. Arizona only asks for proof of citizenship in

addition to the form in order to complete the registration process.”), reh’g

en banc granted & opinion withdrawn, 649 F.3d 953 (9th Cir. 2011). This

en banc concurrence discusses the statutory language “accept and use” in

isolation, with no reference to the “[i]n addition” language in 42 U.S.C.

§ 1973gg-4(a)(2), see Concurring Opinion, again diverging from his prior

dissent, where he noted: “[S]ection 1973gg-4(a)(2) . . . allows states to

‘develop and use’ their own form if it ‘meets all of the criteria stated in

section 1973gg-7(b).’ [Gonzalez v. Arizona (Gonzalez I), 485 F.3d 1041

(9th Cir. 2007),] reads the statute correctly; it is the majority here that is

mistaken.” Gonzalez II, 624 F.3d at 1205. In fact, Chief Judge Kozinski

previously identified a basic problem with the majority’s view via a single

question: “[I]f the statute permits zero deviation from the federal form,

why permit states to develop their forms at all? The only development

needed would be photocopying the federal form.” Id. at 1209.

To determine its meaning, all of the NVRA’s language must be read

together and not in isolation. See Samantar, 130 S. Ct. at 2289 (“We do

not . . . construe statutory phrases in isolation; we read statutes as a whole.

. . .”) (citation and alteration omitted). When read together, the meaning

is clear. States must accept and use the Federal Form for registering voters

for federal elections, but may also develop and use a state form with addi-

tional conditions if they comply with § 1973gg-7(b). When the meaning

of the statute is clear, reverting to legislative history is inappropriate. See

Exxon Mobile Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 567 (2005);

see also Hamdan v. Rumsfeld, 548 U.S. 557, 665-68 (2006) (Scalia, J., dis-

senting) (“We have repeatedly held that . . . reliance [on legislative his-

tory] is impermissible where, as here, the statutory language is

unambiguous. . . .”).

The legislative history is also unhelpful here, because it is unreliable.

“[L]egislative history is itself often murky, ambiguous, and contradicto-

ry.” Exxon Mobile, 545 U.S. at 568; see also Conroy v. Aniskoff, 507 U.S.

4212 GONZALEZ v. ARIZONA

Siebold meticulously outlined the interplay between elec-

tion regulations promulgated by a state government and Con-

gress respectively. In the process, the United States Supreme

Court took care to emphasize the respect that should be

accorded the procedures implemented by states. See Siebold,

100 U.S. at 394 (“State rights and the rights of the United

States should be equally respected. Both are essential to the

preservation of our liberties and the perpetuity of our institu-

511, 519 (1993) (Scalia, J., concurring) (“The greatest defect of legislative

history is its illegitimacy. We are governed by laws, not by the intentions

of legislators. As the Court said in 1844: ‘The law as it passed is the will

of the majority of both houses, and the only mode in which that will is spo-

ken is in the act itself . . . .”) (quoting Aldridge v. Williams, 44 U.S. 9, 24

(1845) (emphasis in the original). In fact, this case is a glaring example

of the flaws of using legislative history. Although the legislative history

cited by Chief Judge Kozinski supports his reasonable argument, the origi-

nal view of the NVRA’s sponsor casts doubt on the clarity of that legisla-

tive history. Senator Ford, the sponsor of the bill, thought that “there is

nothing in the bill now that would preclude the State’s requiring presenta-

tion of documentary evidence of citizenship.” 139 Cong. Rec. S2897-4, at

S2902 (Mar. 16, 1993). He thought that an amendment specifying that a

state could require proof-of-citizenship was redundant. See id. Therefore,

even though the Conference Committee opined that the unamended

NVRA disallowed proof-of-citizenship, H.R. Rep. No. 103-66, at 20

(1993), reprinted in 1993 U.S.C.C.A.N. 140, 148-49 (Conf. Rep.), it is

unclear how many of the members of Congress who voted for the NVRA

agreed with Senator Ford. See Exxon Mobile, 545 U.S. at 570 (“The utility

of either can extend no further than the light it sheds on how the enacting

Legislature understood the statutory text. Trying to figure out how to

square the Subcommittee Working Paper’s understanding with the House

Report’s understanding, or which is more reflective of the understanding

of the enacting legislators, is a hopeless task.”); cf. Hamdan, 548 U.S. at

666 (Scalia, J., dissenting) (“Whether the floor statements are spoken

where no Senator hears, or written where no Senator reads, they represent

at most the views of a single Senator. . . .”). As has been previously said,

“[j]udicial investigation of legislative history has a tendency to become,

to borrow Judge Leventhal’s memorable phrase, an exercise in ‘looking

over a crowd and picking out your friends.’ ” Exxon Mobile, 545 U.S. at

568 (quoting Patricia M. Wald, Some Observations on the Use of Legisla-

tive History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214

(1983)).

GONZALEZ v. ARIZONA 4213

tions. But, in endeavoring to vindicate the one, we should not

allow our zeal to nullify or impair the other.”) (emphasis

added).

The Supreme Court recognized the right of Congress to

exercise its power to enact voting regulations that would

supersede regulations promulgated by a state. See id. at 393.

However, the Supreme Court also noted that “we are bound

to presume that Congress has done so in a judicious manner;

that it has endeavored to guard as far as possible against any

unnecessary interference with State laws and regulations

. . .” Id.

The Supreme Court further reasoned that the power of Con-

gress to enact statutes governing state matters “does not dero-

gate from the power of the State to execute its laws at the

same time and in the same places . . . .” Id. at 395 (emphasis

added). The laws of the state are preempted if, and only if,

“both cannot be executed at the same time . . . .” Id. (emphasis

added).

In Siebold, there was no dispute regarding a conflict

between the state and federal regulations. Rather, the question

raised was whether Congress may enact partial regulations to

be implemented together with state regulations governing

election procedures. See id. at 382. Having answered that

question in the affirmative, the Supreme Court denied the writ

of habeas corpus filed by defendants who were convicted of

violating the federal laws. See id. at 374, 399.

Foster, the more recent case, addressed an actual conflict

between a state law and a federal law. Indeed, in Foster a bla-

tant conflict existed between federal statutes requiring Con-

gressional elections to be held “the Tuesday after the first

Monday in November in an even-numbered year” and a state

statutory scheme under which no election was held on the

date designated by Congress if a candidate received a major-

4214 GONZALEZ v. ARIZONA

ity of the votes during an earlier “open primary” election. 522

U.S. at 68-69.

The Supreme Court explained that the issue to be decided

was “a narrow one turning entirely on the meaning of the

state and federal statutes . . .” Id. at 71 (emphasis added). The

Court defined election as encompassing “the combined

actions of voters and officials meant to make a final selection

of an officeholder . . .” Id. The Court noted that Congress had

established the Tuesday following the first Monday in

November as “the day” for electing members of Congress. Id.

Because the system in Louisiana was “concluded as a matter

of law before the federal election day, with no act in law or

in fact to take place on the date chosen by Congress,” the

Louisiana statute conflicted with 2 U.S.C. § 7, and was pre-

empted. Id. at 73.

Because no Congressional election was to be held on the

date Congress explicitly designated as “the day” for holding

Congressional elections, the Louisiana statutory scheme

clearly and directly conflicted with § 7. Reiterating that fed-

eral law “mandates holding all elections for Congress . . . on

a single day throughout the Union,” id. at 70, the Court

voided Louisiana’s statutory scheme. See id. at 74.

Unlike the statutory scheme voided in Foster, Proposition

200’s proof-of-citizenship provision does not present the bla-

tant conflict addressed by the Supreme Court in that case.

Indeed, the majority rests its analysis on what it perceives to

be the “expansive” sweep of the Elections Clause. Majority

Opinion, p. 4126-27 n.8. However, the message from Siebold

is to the opposite effect. After taking great pains to emphasize

the equal role of the states in preserving the integrity of fed-

eral elections, the Supreme Court counseled that we should

not hasten to declare preemption of a state statutory scheme.

Indeed, Siebold expressly held that the paramountcy of fed-

eral law extends only “so far as the two are inconsistent, and

no farther . . . .” Siebold, 100 U.S. at 386. The Court clarified

GONZALEZ v. ARIZONA 4215

that state and federal enactments conflict only “[i]f both can-

not be performed . . .” Id.

Foster couched its holding in similar fashion, clarifying

that the preeminence of federal statutes over state statutes

applies only to the extent that the two conflict, and only “so

far as the conflict extends . . .” Foster, 522 U.S. at 69, (quot-

ing Siebold, 100 U.S. at 384).

In making the determination whether the Louisiana statu-

tory scheme violated 2 U.S.C. § 7, the Supreme Court focused

on the word “election” as used in § 7. Id. at 71. The Court

consulted a dictionary for the definition of “election” to deter-

mine if a conflict existed between Louisiana’s statutory

scheme and § 7.

It is important to remember that the Supreme Court opined

that State enactments are superseded by Federal enactments

only “[i]f both cannot be performed . . .” Siebold, 100 U.S. at

386. As applied in Foster, the state statutory scheme was

voided because it was impossible to hold a Congressional

election on the designated day if the election was in fact com-

pleted on an earlier date. See Foster, 522 U.S. at 73.

In my view, the majority opinion has stretched the principle

established in Siebold and applied in Foster beyond its

intended bounds.2

2

I do not agree that the cases cited on pages 4126-27, n.8 of the majority

opinion establish that the Supreme Court has “construed Congress’s

authority under the Election Clause expansively.” Rather, in the earlier

years of this nation’s existence, when many states resisted the notion of

a centralized government, these cases served to emphasize that federal

elections conducted in the various states were subject to federal regulation.

See, e.g., The Ku Klux Cases, 110 U.S. 651, 657-58 (1884) (“If this gov-

ernment is anything more than a mere aggregation of delegated agents of

other states and governments, each of which is superior to the general gov-

ernment, it must have the power to protect the elections on which its exis-

tence depends, from violence and corruption . . . .”); id. at 662 (“This

proposition answers, also, another objection to the constitutionality of the

laws under consideration, namely, that the right to vote for a member of

congress . . . is governed by the law of each state respectively . . . .”).

4216 GONZALEZ v. ARIZONA

Indeed, both Siebold and Foster took care to delineate that

preemption extended only as far as a conflict exists, and no

farther. See Siebold, 100 U.S. at 386; Foster, 522 U.S. at 69.

And a conflict exists only if the two regulations cannot co-

exist. See Siebold, 100 U.S. at 386. As discussed above, such

is not the case for Proposition 200’s requirement that a pro-

spective voter present proof of citizenship, when considered

with the contents of the Federal Form.

The fact that the NVRA contains a provision precluding the

requirement of “notarization of other formal authentication”

in no way conflicts with Proposition 200’s proof-of-

citizenship requirement. Notarization and authentication are

concerned with the genuineness of an executed document.

See, e.g., Federal Rule of Evidence 901(a) (“The requirement

of authentication . . . is satisfied by evidence sufficient to sup-

port a finding that the matter in question is what its proponent

claims.”); see also In re Big River Grain, Inc., 718 F.2d 968,

971 (9th Cir. 1983) (noting that “the notary’s function is to

protect against recording false instruments . . .”). In contrast,

Proposition 200’s proof-of-citizenship requirement has noth-

ing to do with notarization or authentication and everything to

do with affirming eligibility for registration. Because the

requirements of both the NVRA and Proposition 200 may be

met without conflict, they can easily co-exist under the Elec-

tion Clause. See Siebold, 100 U.S. at 386; Foster, 522 U.S. at

69. As both statutes may be enforced with no conflict, the

NVRA does not pre-empt Proposition 200. See id. For that

reason, I would affirm the district court’s grant of summary

judgment to the State of Arizona. I respectfully dissent from

the majority’s conclusion to the contrary.